The Judiciary: Beyond A Senator’s Faux Pas

Senator Bulkachuwa’s Faux Pas 

In my piece of 28/5/2019 titled “Election Tribunals: Hopes and Fears”, I had written about the application made by the legal team of the 2019 Petitioner at the Presidential Election Petition Tribunal (PEPT), former Vice President Alhaji Atiku Abubakar, that Hon. Justice Zainab Bulkachuwa, then President of the Court of Appeal, recuse herself from the Panel hearing Alhaji Abubakar’s petition against then President Muhammadu Buhari, and she be replaced by another Justice of the Court of Appeal because of the likelihood of bias, due to the fact that Justice Bulkachuwa’s husband, Senator  Bulkachuwa was an APC Senator-Elect at the time and her son was also a member of the APC, the ruling political party that President Buhari belongs to. Even though Justice Bulkachuwa had voluntarily recused herself from the matter (after numerous comments from the public), I had respectfully registered my disagreement with the unanimous decision of the PEPT dismissing Alhaji Abubakar’s application for Justice Bulkachuwa’s recusal, for want of evidence to substantiate the allegations of likelihood of bias.

What additional evidence was required, other than the fact that Justice Bulkachuwa’s immediate and closest family members – her husband and child, belonged to the political party that was being petitioned against? In any reasonable person’s opinion, these reasons which were advanced in Alhaji Abubakar’s application, were cogent and reasonable enough evidence to satisfy any court about the likelihood of bias; definitively, the reasons were more than “mere vague suspicions of whimsical, capricious and unreasonable people” or ”perceived judicial bias”. See Deduwa v Okorodudu & Ors 1976 1 NMLR 237; Rafiu Womiloju & 6 Ors v Fatai Ogisanyin-Anibire & 4 Ors (2010) LPELR-3503(SC) per Ibrahim Tanko Muhammad, JSC (as he then was); Dr Jeremiah O. Abalaka v Prof Ibironke Akinsete & 2 Ors SC.442/2010 delivered on March 3, 2023 per Helen Moronkeji Ogunwumiju, JSC.

The likelihood of bias, does not necessarily mean there’s actual bias; in this case, it simply means whether there was cause for reasonable people to wonder if Justice Bulkachuwa could remain impartial, on account of her familial relationships which were enough to raise eyebrows. Bias obviously translates into issues of unfairness, that is denial of the right to fair hearing and discrimination against the less favoured party, contrary to Sections 42(1)(a) & 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). 

While some believe that Senator Bulkachuwa was just being a male chauvinist by trying to display his authority over his wife with his utterances, others argue that that was not the case, that on the other hand, he inadvertently laid many ‘enquiring minds’ to rest, when he blurted out at the 9th Senate Valedictory session that his wife, Justice Bulkachuwa had tolerated him when he had encroached upon her freedom and independence while she was in office. He then took it a notch higher, by adding that she had also extended her help to his colleagues! At this point, the former Senate President, Ahmad Lawan, hurriedly stopped Senator Bulkachuwa from expatiating, and shut him down there and then. 

But, with what the public heard, I think we can now safely conclude unequivocally, that Alhaji Atiku Abubakar’s application was not just meritorious, but should have been granted by the PEPT! Though, Justice Bulkachuwa did the needful by recusing herself, meaning that to all intents and purposes, Alhaji Atiku Abubakar’s application had been granted indirectly, it is decisions like that of the PEPT which refused Alhaji Abubakar’s application for recusal, when even to a blind person it was clear that it should have been granted, that most times, makes people question the uprightness of the justice system. 

Unfair Characterisation and Generalisation 

However, Senator Bulkachuwa’s statement seems to have opened a can of worms, as people, including Lawyers, are now questioning the integrity of the Judiciary as a whole. But, a pertinent question to ask is, can insinuation or the alleged action of one person, translate into being the action of everybody? I submit that it would be grossly unfair, to generalise to the extent that some people have – that the whole Judiciary is suspect. This is certainly not to say that the Judiciary is perfect and it does not harbour any bad eggs – it does; but, just as there are bad eggs everywhere, the Judiciary is not exempted. 

I cannot deny the fact that the administration of justice sector, is in dire need of independence, some cleansing  and reform, and we hope that amongst other requirements for improvement, this new administration will ensure that like the Legislature, the Justice sector will automatically get the funds it requires to undertake some of these reforms to build a stronger and better institution. The truth is that it is easier to destroy an institution, than to build a solid one. Over the years, there has been an erosion of all our institutions, the justice sector not excepted, so much so that the output of institutions now depends on the strength and character of their leadership, instead of the opposite, that is, the institution running at an optimum level irrespective of the leadership. 

My Sample of About 350 Judgements & Matters Arising

Be that as it may, since I became Editor of this esteemed publication in October 2016, we have reported about 350 judgements, mostly Supreme Court judgements, and some from the lower courts, covering a vast range of issues – criminal, civil, election. Some may say this is just a drop in the ocean. However, as Editor, for the past 350 weeks or so, every week I have read every single judgement we have reported, and out of 350, I’m not sure that I can fault up to 30 of those judgements. Some judgements I have questioned, because they didn’t go into the merits of the case, but were decided on technicalities and not substantive issues, and had they been decided on the substantive issues, the outcomes may have been different. Naturally, such technical decisions are bound to raise questions from those watching, especially as the practice of delivering technical justice has been repeatedly discouraged, since courts have been enjoined to concentrate on doing substantive justice to all cases, instead of being bogged down with mere procedural technicalities that occasion no miscarriage of justice. See the case of Famfa Oil Ltd v AGF & Anor (2003) LPELR-1239(SC) per Iguh, JSC. Out of the cases we have reported, also only a few of judgements have I found to be ‘per incuriam’, that is, perverse, going against the weight of the evidence. 

Using my own sample of 350 cases, it would be impossible for me to conclude from those judgements that all judicial officers are corrupt or bad. What about the questionable or faulty recruiting process of judicial officers? Some judicial officers are simply not capable enough, and this also contributes to some of the less than wholesome judgements we see. You will recall that during a recruitment exercise of Court of Appeal Justices a few years ago, the former NBA President, Olumide Akpata revealed that some of the shortlisted candidates for the job were not familiar with the basic legal concept of ‘Lis Pendens’, and they were told that they would learn on the job! What kind of judgements, can we then expect from them? 

In my piece of 13/12/2022, “A Case for Filling Court Vacancies”, I mentioned that the during the 2022 recruitment exercise, the Computer Based Test (CBT) was cancelled because some candidates for position of Court of Appeal Justice are not computer literate. I then used as an example, the judgement in the case of “FRN v Abdul 2007 5 EFCLR Page 204 at 228 in which the Defendant was arrested by the EFCC and arraigned on a two-count charge of being in possession of documents containing false pretences contrary to Section 6(8)(b) and 1(3) of the Advanced Fee Fraud and Other Related Offences Act (scam emails which he had used to defraud innocent victims). The trial Judge, who obviously couldn’t have been computer literate, likened the sending of an email to the physical posting of a letter at the post office, and held inter alia that, the Accused cannot be guilty of being in possession of a letter that he has written and posted. Obviously, the Judge was not aware that in the E-mail regime, there’s the Inbox, Drafts, Outbox, Sent, Junk and Bin! Neither was he aware that when an email is dispatched, it goes to the Sent Box of the Sender, and the Inbox or even Junk Mail of the Receiver; and so, unlike a physical letter that is dispatched at the post office and is no longer in the possession of the Sender, in the case of an email, the Sender still has possession of an email that has been sent, as it will remain in the Sent Box until it is deleted. It is when an email goes into the Sent Box of the Sender, that one knows that an email has been sent”. 

In this situation, perverse decisions will arise out of a lack of knowledge, and not necessarily out of corruption, like FRN v Abdul (Supra). Not that this makes it any better, because injustice, however it is served, is still injustice (and ignorance of the law is no excuse, whether for a perpetrator or a judicial officer); but my point here is that, for instance, most of the judicial officers whom I have come across are computer literate. Can we then make a blanket statement that because the trial Judge in FRN v Abdul (Supra) could obviously not have been computer literate to come to such a decision, that all Judges are not computer literate too? No, we cannot.

Other ills like rampant forum shopping and conflicting judgements, have also contributed in no small measure to the Judiciary being painted black. However, shortly after his confirmation as the Chief Justice of Nigeria, Hon. Justice Olukayode Ariwoola, GCON, last November, made it quite clear to judicial officers that he would not tolerate any indiscipline from any judicial officer, saying “I will not condone any act of recklessness”. The menace of forum shopping for one seems to have somewhat reduced, as the CJN has shown that he may not be shy about disciplining erring judicial officers, unlike in the recent past where people seemed to just please themselves.

Unfortunately, in the past, the Court of Appeal developed a reputation for handing down conflicting judgements, while forum shopping had become the order of the day in the High Courts. When Hon. Justice Monica Dongban-Mensem assumed office as President of the Court of Appeal in 2020, she embarked upon stemming the tide of conflicting judgements in her court, by ensuring that for one, key or landmark judgements are immediately circulated among all the Court of Appeal Divisions and Justices; and for any deviation from these decisions there must be proper cause, failing which such Justices who deviate without such proper cause will face disciplinary action at the National Judicial Council (NJC). 

Conclusion 

Obviously, there’s still a considerable amount of work to be done, to get the Judiciary to where it really ought to be, and judicial officers must help themselves and the reputation of our temple of justice, by always endeavouring to do the right thing according to their oath of office; however, tying the whole Judiciary to the stake every time there is an issue, in order to execute it by firing squad, is not the best. While we cannot deny that there’s a lot to be done to get our Judiciary to function optimally, condemning the entire third arm of Government at every drop of a hat is somewhat unjust, unjustifiable and unreasonable. Most are quick to condemn the Judiciary – they make negative sweeping statements about the whole Judiciary because of the bad eggs, and tar everyone with the same dirty brush. This is uncharitable, and particularly discouraging to the upstanding members of the Bench.