Access to Justice :: Journals

By Oluwatoyin Badejogbin

Two years after he was indicted and retired as Chief Judge of the High Court of the Federal Capital Territory, Justice Dahiru Saleh does not miss an opportunity to assert his innocence. His claims of victimization prompted Access to Justice/The Justice Observatory Journal to take a close look at the Disciplinary Process that procured Justice Saleh's exit from the Bench. And after a sober reflection on the reports of the Justice Babalakin Review Committee and some of the documents that were before it, as well as a number of interviews with some of the key actors in Justice Saleh's “removal”(see previous editions of JOJ for the interviews), the Justice Observatory Journal forms the opinion that Justice Saleh may have been indicted not on any substiantlly proven allegations of misconduct but because he had become a moral burden to the judiciary.

Former Chief Judge of the High Court of the Federal Capital Territory, Abuja, Justice Dahiru
Saleh may indeed have rightly alleged that the Justices Eso and Babalakin Panels victimized him when they indicted him for theft and misadministration. Many will remember Justice Saleh as the judge who ran amock with injunctive orders and provided the platform for the annulment of the 1993 presidential elections, adjudged to be the freest and fairest in Nigeria's political history. His orders suspended further release of the election results - incidentally when the late Chief M.K.O. was winning by a landslide – and triggered a chain of events that eventually led to the election's annulment.

Although many hailed the indictments and his subsequent removal from the bench, Justice Saleh consistently maintains that Justices Eso and Babalakin meant to punish him for his role in the annulment of the 1993 presidential elections. The sad truth is, a dispassionate look at the Justices Eso and Babalakin's indictments may lend some credence to Justice Saleh's claims; their panels adopted procedures and arrived at conclusions that on calm and sober appraisal might show that he was not judged according to the facts, but the perception that he had become a moral burden to the Nigerian judiciary. And quite unlike other opportune moments that the NJC seized to warn that it would not countenance abuses of judicial discretion, it missed in Justice Saleh's case, what arguably was its most exceptional opportunity to send the warning much earlier, early enough perhaps to prevent Justices Egbo-Egbo's and Nnaji's indiscretions.

It obviously should not surprise anyone that soon after the Justice Eso Panel was created, it received a petition from the Abuja branch of the Nigerian Bar Association, calling for Justice Saleh's head partly for issuing the controversial orders. Of all the allegations against Justice Saleh that were before the Justices Eso and Babalakin Panels, the allegation about Justice Saleh's “ultra vires” orders was indisputably the weightiest case against him; it was in fact the first allegation in the NBA Abuja petition. Justice Eso's mandate was wide enough to entertain the allegation and he had probably little need for evidence to indict Justice Saleh for abuse of judicial powers. Justice Saleh also could quite easily have qualified for Justices Egbo-Egbo and Nnaji's fate, both relieved of their offices in 2004 for abusing their judicial powers in politically sensitive cases. However, even though the Justice Eso Panel called for three case files associated with the 1993 presidential elections, it strangely returned no findings on the allegation. Curiously too, the Panel overlooked other instances cited under the allegation in which Justice Saleh acted ultra vires his judicial powers. Neither did the Justice Babalakin Review Committee that was mandated inter alia “To investigate the allegations of misconduct against the serving judges indicted by the Eso report” inquire into the allegations of judicial indiscretion, choosing instead to limit its review to Justice Saleh's other indictments.

“It may perhaps have been difficult to indict Justice Saleh for abuse of judicial powers if there had been political considerations at play. Unfortunately, the failures of the Justices Eso and Babalakin Panels to do justice to the allegation of abuse of judicial powers expose both panels to Justice Saleh's attack that they were politically motivated”

It is somewhat absurd that the Justice Eso and Babalakin Panels overlooked the allegations about abuse of judicial power, and, quite possibly, missed an obvious opportunity to make an early example of Justice Saleh's indiscretion. Not too long ago, the NJC dismissed a judge when he abused his discretion by issuing ex parte orders to stop the National Convention of the All Nigeria Peoples Party which had already convened. Yet Justice Saleh's orders would probably go down in Nigeria's judicial history as one of the worst manifestations of judicial indiscretion and intrusion in the political sphere, as one abuse of judicial power that triggered one of the most devastating consequences in Nigeria's political history. The failure of the Justices Eso and Babalakin Panels to make its findings on Justice Saleh's ultra vires orders, even after the Justice Eso Panel called for three case files associated with the elections (the case files may also have been before the Justice Babalakin Panel) inevitably stirs questions. Could their findings have been too politically “loaded” to report, or were the allegations just frivolous?

Many may recall that following Saleh's order forbidding further release of the election results, some High Courts in Southwest Nigeria, in an effort intepreted by some to have been directed at protecting the interest of the Southwest in the elections, responded by issuing countervailing orders that mandated the release of the election results. Justice Saleh would latter propound - rather demurely - that it was those countervailing orders that ridiculed and politicized the judiciary and led to the truncation of General Babangida's transition programme. Did Justice Eso's Panel, foreseeing a backlash from Justice Saleh's riposte, decide it was politically more sensible to abandon investigating Justice Saleh's role in the said cases than having to investigate other Judges, who, like Justice Saleh, arguably also abused their discretion by issuing the countervailing orders? One would expect that a panel that entertains complaints would comment on whether or not the complaints were established. Justice Eso's panel was mum on the allegation of Justice Saleh's abuse of judicial powers in the 1993 elections case. Incidentally too and maybe for reasons that may not be unconnected with the foregoing, however remotely, the Justice Eso Panel failed to consider other instances of judicial indiscretions cited against Justice Saleh in NBA Abuja's first allegation. Did these discrepancies escape Justice Babalakin's Review Committee, which also kept mum on the allegation? Could this omission possibly open the Review Committee's own work to attack?

It may perhaps have been difficult for the Justices Eso and Babalakin Panels to proceed against Justice Saleh on allegations of abuse of judicial powers if the above political considerations had been at play. Unfortunately, their failures to do justice to the allegations inevitably exposed both panels to Justice Saleh's attack that the panels were politically motivated. And though indicting Justice Saleh on allegations of theft and judicial misadministration may have been the easier path to follow, their attempts at walking this path most unfortunately betrayed a fixation to indict.

Besides the allegation that Justice Saleh granted ultra vires orders were other complaints by NBA Abuja that alleged that Justice Saleh lacked administrative aptitude. A breakdown of the allegations is as follows: i.) Inability to control the judiciary; ii.) Failure to attend to cases whenever he is away no matter the urgency; iii.) Lack of administrative capability; iv.) Running the judiciary like a cult; and v.) Lopsided appointments. On the strength of these allegations, Justices Eso and Babalakin indicted Justice Saleh for declining productivity, maladministration, lack of leadership by example, ridiculously low court work, not attending to Judge's problems and loss of confidence in his leadership as Chief Judge by judges and lawyers. One may be quick to observe that the indictments overreached the allegations against Justice Saleh to raise questions that NBA Abuja did not put in issue. Nowhere in their petition did NBA Abuja allege for instance that Saleh failed to attend to judges' problems, or that judges had lost confidence in his leadership. Neither did FCT High Court Judges author any such allegations. How then did the Justice Eso Panel come to the conclusion that judges had lost confidence in Justice Saleh's leadership or that he did not attend to his fellow judges' problems? Did the panel raise these issues suo moto, and was Justice Babalakin's Committee content to endorse the indictments without establishing whether they related to any petition?

“If you judge, investigate” –Seneca

“An unconvincing judgment is rendered in awkward decibel: it can neither entertain nor can it be danced to” – Hon. Justice S.O. Uwaifo (speech given at the special session of the Supreme Court on 24th January, 2005)

“Justice Saleh was indicted for ridiculously low court work without vital evidence - Justice Saleh's returns of cases. When reviewing indictments for ridiculously low court against Justices K.D Ungbuku, J.U. Obase, R.I.E. Odu, W.S.N. Onnoghen (now of the Court of Appeal) and Oloko, Justice Babalakin's Committee had recourse to their returns of cases”

Yet another interesting twist to the Justices Eso and Babalakin indictments is that Justice Saleh was indicted for ridiculously low court work without vital evidence - Justice Saleh's returns of cases. When reviewing indictments for ridiculously low court against Justices K.D Ungbuku, J.U. Obase, R.I.E. Odu, W.S.N. Onnoghen (now of the Court of Appeal) and Oloko, Justice Babalakin's Committee had recourse to their returns of cases. Based on those returns, the Committee upheld or quashed Justice Eso's indictments. It is in fact on record that in at least two of the cases, the Committee received returns of cases on request. Curiously and without venturing an explanation for its discriminate procedure, the Justices Eso and Babalakin Panels chose a different course when indicting or reviewing Saleh's indictment. Besides, it is on record that Justice Saleh strenuously insisted before the Justice Babalakin Panel that his return of cases be consulted. It cannot be seen from its report that Justice Babalakin's Committee cared that Justice Saleh's return of cases could provide evidence of the aptness of the indictment it was mandated to review.

For the same reason - i.e. ignoring potentially useful evidence or clues – Justice Saleh's indictment for theft of exhibit money further betrays a fixation. Justice Babalakin's Committee's first misjudgment was its classification as after thought, Justice Saleh's defense that he could only recollect that he might have collected the money as touring advance. But Justice Saleh alluded to that defense earlier in his representations to the Justice P.N. Nwokedi Sub-committee of the Justice Eso Panel in 1994, when he stated that he may have collected the money as touring advance or loan, to facilitate an official duty. Furthermore, without adducing persuasive reasons, Justice Babalakin's committee construed as proof of theft, Justices Wali's and Kalgo's testimony that Justice Saleh collected the money either as touring advance or loan to facilitate his transfer to the High Court of the FCT, Abuja and issued an I.O.U. to cover the transaction.

“By relying on the Registar's uncorroborated and contested testimony, the Justice Babalakin Review Committee denied Justice Saleh a reasonable right to presume that the Registrar acted with propriety when he treated his (Saleh's) application for funds”

This apparently was Justice Babalakin's Committee's second error, as Justices Wali and Kalgo's testimony could as well have impeached vital evidence that the Committee relied on – the uncorroborated and contested testimony of the Registrar (custodian of the money) to the effect that he told Justice Saleh at the material time that the money was an exhibit. Justice Babalakin's Committee apparently overlooked the fact that neither Justice Wali nor Justice Kalgo (whom the Registrar invited to persuade Justice Saleh to “refund” the money) corroborated the Registrar's claims. By relying on the Registrar's uncorroborated and contested testimony therefore, the Justice Babalakin Review Committee unfairly denied Justice Saleh a reasonable right to presume that the Registrar acted with propriety when he treated his (Saleh's) application for funds. Maybe the Panels' other strong reason for indicting Saleh for theft was that he had to be prevailed upon to pay. But, again, in construing that as incriminating evidence, the Committee ignored Justice Saleh's account that he delayed to pay because his entitlements were delayed and that he paid soon after he received his entitlements.

Perhaps another tribunal would still indict Justice Saleh for theft and on all other counts, but not until it has plugged the loopholes. But beyond Justice Saleh's indictments, it may be observed that the Justices Eso and Babalakin's Panels overlooked even more important issues that the theft allegations raised. It definitely is a sad reminder of the judiciary's recent history of funding predicaments that a judicial division of a superior court of record could be so impoverished as not to be able to furnish a judicial officer with as little as N6000. 00 to proceed on duty tour without encroaching on money kept in the court's trust as exhibit. And assuming that Justice Saleh received the money to facilitate his relocation to a new duty station, it indicts the Federal High Court's system of administration in 1984 that a judge was redeployed without funds to facilitate his relocation. Although the Justice Eso and Babalakin Panels did well to recommend improved funding for the judiciary, one wonders if today judges still have to find means to relocate to new duty stations or proceed on duty tours at their own expense and get reimbursed subsequently. That certainly would be an anomaly.

It does therefore appear that both panels seem to have failed to ponder the deleterious effects that delays in payments or disbursement of judges' emoluments or judiciary overheads could have on judges' performance and integrity, and possibly too, the physical integrity (safety) of exhibits kept in the court's custody. Yet, that Justice Saleh claimed that his entitlements were delayed (as a result of which he could not repay the “allowance” or “loan” in time) is no more a foreshadow of delayed disbursements that the NJC has grappled with in recent times. In 2004, the NJC, for no fault of its own, paid judges several months' arrears of emoluments. Judiciary overheads also started to be paid rather late into the first term of the President Obasanjo Administration. Could these delays and its attendant consequences on justice administration have been avoided if the Justices Eso and Babalakin Panels concentrated on aspects of the Justice Saleh's alleged theft saga that exposed funding and fund disbursement predicaments and, possibly, worked out some solutions?

“...investigations by NJC committees should not be tinted with inconsistencies that could make its procedures and findings vulnerable to attacks...The NJC may therefore wish to set out clear guidelines and procedures for its committees that are mandated to investigate complainants against judicial officers, that is if it has not yet done so...the NJC may also wish to establish a safe body of precedents to guide its future disciplinary decisions”

Furthermore, one wonders whether exhibit moneys in courts' custody are still kept within tempting reach of Registrars and Judges as in the present case. The NJC may have noted that warehousing conditions for exhibit evidence and sequestrated property in several courts across Nigeria are very poor and capable of compromising the integrity of such items. It is common sight to see items in court custody lying around under different stages of depreciation as a result of their exposure to changing climatic or other conditions. It is therefore imperative that courts and perhaps, the NJC should consider proper warehousing conditions to protect court exhibits and attached items.

Finally, investigations by NJC committees should not be tinted with inconsistencies that could make its procedures and findings vulnerable to attacks. The NJC for instance should avoid the type of variable procedures the Justice Babalakin Committee adopted when considerating allegations of ridiculously low court against Justices Saleh, Ungbuku, Obase, Odu, Onnoghen and Oloko. The NJC may therefore wish to set out clear guidelines and procedures for its committees that are mandated to investigate complaints against judicial officers, that is if it has not yet done so. While not ignoring the peculiarities that individual cases are bound to reveal, the NJC may also wish to establish a safe body of precedents to guide its future disciplinary decisions.

“The first duty of law is to keep sound the society it serves” – President Woodrow Wilson Inaugural Speech, March 14, 1913

“The independence of the Judiciary carries with it the responsibility for every judicial officer to perform his duties with transparency and probity” –Hon. Justice Uwais, GCON, CJN,

“It is our view that our court owes the public a candid explanation of our respective positions” - Justice Edith Jones (2002).