As a principle, the former Chief Justice of Nigeria (CJN), Justice Idris Kutigi, rarely grants press interviews because he abhors cheap publicity. But the exigency of the protracted crisis in the judiciary and the resilience of LEADERSHIP SUNDAY made him open up on the burning national issue. In this interview with TONY AMOKEODO and SHUAIB SHUAIB, Kutigi says, among others, that the rules were breached in the Sokoto governorship tribunal. Excerpts.
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When you swore in your successor, Justice Aloysius ?Katsina-Alu, on December 31, 2009, legal pundits had argued that the action was tantamount to a situation where the country was saddled with two CJNs at the same time. What prompted you to take that decision? ?
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The law permits me. The Oath Acts says a new CJN can be sworn in by the president or the CJN himself – the one retiring. So, as far as the law is concerned, I have the right to swear him in, which I did and I made it clear. Of course, he (Katsina-Alu) would not take office immediately. On that day, I made it clear that I retired at midnight, and said when I retire, he takes over. That is why the law provides for two people to administer the oath if one is not available. ?
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But some analysts claimed that what you did is a spirited attempt to save the country from a constitutional crisis?. ?
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?People can form their opinions. As for the law, even if the president were around, he could say, ‘Kutigi, go and do it yourself.’
We have sworn in many other judges, they did not talk about that. On that day, I swore in the suspended President, Court of Appeal (PCA), Justice Isa Salami, too. That day, I swore in the two of them, Salami and Katsina-Alu. After swearing in Salami, I then swore in Katsina-Alu because of the rules. We can do it and that is all. Then, I made it clear that I remained CJN until midnight and that he would take over from midnight.?
So, how could there have been two CJNs at the same time. He (Katsina-Alu) knew he could not resume when I was still the CJN; he would resume after I had retired. What was wrong with that? ?
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But your action generated a lot of controversy at that time?
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It was a pure mischief. People were more interested in who was the president, and they worried more about the president who they knew was not in the country. They wanted a crisis. Maybe I saved the nation from crisis. But what I did, I
did it according to the law. What I am saying is that, even if the president had been around, he could ask me to do it – because the law says ‘president’ or ‘CJN’. If the law allows for two people, he could say ‘go and do it, because I am busy or I have no time’. ?If the president wants to do it – and he is available, he can do it. The law is there, the law is its own precedent. Nobody had done it; of course, no CJN had sworn in another CJN; it makes no difference – the law makes provision for it. So, I did what I did according to the law and I explained it that day. But people wanted to engage in certain mischief. That was why they said there were two CJNs. How could there be two CJNs in the country? ?
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The Nigerian Bar Association (NBA) is sugesting that the next CJN should come from outside the Supreme Court hierarchy. Do you think something of that nature could ever happen in Nigeria? ?
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That is a political decision. Somebody did it before; so it will not be the first time. The late Gen. Murtala Muhammed brought Sir Darnley Alexander to be the CJN. There are other precedents. Some people did not come from the Supreme Court. The West Indian who was our CJN did not come from the Supreme Court. I think it is a political decision. If the politicians decide that they want somebody from somewhere, they can bring him. But according to civil service rules and our own procedure in the Supreme Court, this is our ladder, this is our own provision. But if the president decides that he wants somebody from somewhere, it is a political decision. It is not for Supreme Court justices to make. ??
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There are also suggestions that the elevation being used by the Supreme Court to chose the CJN is causing instability on the grounds that some justices ?come and spend only few months. Don’t you think this should be looked into to make the CJN stay in office for longer periods – for the sake of consistency? ?
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How could it be. Our law says ?if you are appointing a Supreme Court justice, he will retire at 70. It did not say they should appoint you to the Supreme Court at 40 or appoint you to Supreme Court at 60. According to our constitution, if you are in the High Court, you retire at 60 and at the Court Appeal, you retire at 65. ??
If the retirement age says you retire at 70, that is what the constitution and the Supreme Court Act say. If you reach 70 years, even if you spend two days before you are 70, and you reach 70 after one day, you will go because the law says so.?
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With the benefit of hindsight, do you think the NBA’s agitation is laudable, taking into consideration that if someone had a problem with the CJN in the NJC, we may witness the ongoing personality clash between Katsina-Alu and Salami? ?
I do not know what happened between the two of them. But when I was there, I had no problem with the NBA. All my predecessors had no problem with the NBA. But if trouble arose now, I do not know why or how it arose. The NBA should know. There are members of the NBA, plenty of them in the NJC. ?
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But the NBA is saying that it only make inputs on judges’ appointments, claiming that when it comes to the issue of discipline, the body is not represented??
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You will need to amend the 1999 Constitution. ?The Constitution, which provides for the appointment of judges, specifically states the roles of NJC members. But when judges are going to be sanctioned or dismissed, that is for the judges that are there. That is the constitutional provision. The provision can be changed. As far as I am concerned, somebody who can appoint, can also remove if necessary. But there are also a lot of things: we do not want a situation where the NBA, because it has a problem with one judge, will come to the NJC and join in removing him or in disciplining him. There are arguments for and against. It is the Bar which goes round all the courts. The Bar may pick a problem with a judge and then when the judge is being asked to respond by the NJC, the Bar takes part in removing him. But this can only be possible if the Constitution is amended.
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Analysts also argue that if someone has a problem with the CJN, such an individual may never get a fair hearing on the grounds that he (the CJN) appoints 14 out of the 24 NJC members. The NBA and some senior lawyers have also faulted the way the recent award of Senior Advocates of Nigeria (SANs) was conducted?.
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We were there. The CJN is only the chairman of the NJC. He is the chairman of the Legal Practitioners Privileges Committee (LPPC) that confers the award of SANs on deserving legal practitioners. I was there; I was the chairman. Nobody gives the CJN the power to appoint anybody. It depends on individuals. Maybe, like you said, when they ran into difficulty, he (Katsina-Alu) decided to go and do it by himself and he did not want them to take part. But the NBA members are there and I do not know how he could have done it without them taking part in the appointments, because they are there. Every member will take part, unless maybe, when they vote, the majority prefer that number of candidates. But if what I read from the papers are correct, the NBA said it was not allowed to take part in the appointment, and if the body is not allowed to take part, it may affect the appointment itself. Now, if you have a problem with the CJN and you come to the NJC to discuss that matter, the CJN leaves that meeting and somebody takes over. There is a deputy to take over as the chairman. ??
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But on the controversy over the award of SANs, in your time, you did not swear them in. You said your successor (Katsina-Alu) should do it. Why was that? ?
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I was to go on December 31, and by that time we had not finished the exercise. We were still doing the screening and ?the inspection of the chambers. So, the exercise continued when I left. How could I touch it when they had not finished? I did not say they should bring it to me to do my own picking. I said they should do it normally: do the exercise; do the chamber inspection; send the report to the lawyers to report and comment about individuals. They had not done all those things; the rules say they must be done. So, I could not have sat down to do it by myself. In this case, I suppose, the rules were not followed.
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Some people went to court to challenge the propriety of the last exercise of SAN award. ?Your successor also moved the inauguration of the new SANs from September to August while ?the NBA and the Body of Senior Advocates of Nigeria ?boycotted the event. What is your take on these discordant tunes?
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I do not know. Like I said, there were CJNs before this one. There has never been this type of problem before. Something must be wrong somewhere. ??
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Is it the tradition to swear in the SANs in September or any other month because the former CJN brought it to August instead of September. What could be responsible for this? ?
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What we had been doing before was to do it around September. Normally, we announce it about six weeks before we resume – after our vacation – so that the lawyers can go and buy their wigs and so on. We do it during the new legal year of the Supreme Court. But the argument was that because Katsina-Alu wanted to retire on Sunday, August 28, 2011, he had to change the date and move the inauguration to Friday, August 26, 2011. You can see the consequences. The NBA, the Body of Senior Advocates of Nigeria and other senior lawyers were not there – and they have to sort it out now by themselves. Lawyers were not there. That is not how we do it. Normally, it is a ceremony, a big ceremony if it is done properly. But this one was not like that. Only the lawyers (recipients) themselves and some of their relatives (attended). How could I be happy when it was not done according to the law. ??
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You are a stakeholder in the judiciary. Nobody can mention Nigerian judiciary without Justice Kutigi because of your unique role. When the feud between Katsina-Alu and Salami came up, what role did you play, because we learnt that some elders reportedly intervened and asked Salami to withdraw the suit? ?
Personally, I was not there; I played no role. Up until ?today, I only read about it in the papers. Nobody invited me to come and play any role ? ?
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But in your time, you and the then PCA, Justice Umaru Abdullahi, ?had a cordial relationship. How do you feel about what was happening recently??
?We always maintained a cordial relationship, as the heads of Supreme Court and the Court of Appeal. ?So, how could there be a crack with the heads. That is serious. I feel bad, like everybody feels bad, because nobody likes the way things have happened now or are happening. Maybe they have sorted it out. I do not know what will happen. ?
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People now see your successor as someone who came in a controversial manner and also left in controversy. What do you feel about that? ?
What was controversial about it? He did not come in a controversial manner. He was sworn in. If it was controversial, once a president emerged after the crisis, he could have sworn in Katsina-Alu again. They did not swear him in again. What I am saying is that for those who said there were two CJNs, when I was gone and there was a president, they should have sworn him in again – they did not do that. They knew I did not do any wrong. If I did, when the opportunity came, they could have done it again. The same people could have gone back. They were looking for Yar’Adua to sign a paper. They went to Saudi Arabia to sign the paper. When I did the swearing-in, he (Jonathan) was not even acting president; he was only a vice president. He could have done the swearing-in again if they felt the one I administered was not very good. They did not do it, which meant there was nothing wrong with what I did. I told them until midnight, I remained the CJN and that ?he would take over at midnight. So, where does the issue of two CJN at the same time arise? ?
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The NJC claimed that it could not collect a court process because it was not signed; did you rely so much on technicalities or on merit??
It is the secretary that receives services; they said it was not signed, that was why they sent it back. Court services processes must be signed – that is a rule. If it is not signed, you can refuse to accept it to get it signed, and brought back.?
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The revelations from WikiLeaks indicate that one of your aides was talking to an American ambassador and that you rejected bribes from former President Olusegun Obasano. Did you know anything about these allegations? ?
Do you know what year that was? They were talking about Obasanjo; they were talking about 2003/2004. At the time I was not the CJN, I was not even number two. Justice Muhammadu Uwais was the CJN during Obasanjo’s regime. ??
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There were reports from WikiLeaks, too, from Yar’Adua’s time suggesting that a former Attorney-General of the Federation ?(AGF) and minister of justice ?was the one who wrote the judgement of the presidential election tribunal. ??
Which one? You know they were reporting two judgements. They were reporting all sorts of things. I was just reading that they gave money to ?Justice James Ogebe’s son to give him in the United States and so on. They did not mention anybody here who brought me the money. But who told them this. They can form their own opinion. How could a former AGF write a judgement for the Supreme Court? That can never happen.?
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The American ambassador in the cables was surprised that the NJC could not find any wrongdoing on the part of Justice Bulkachuwa over what was described as contradicting judgements in the Sokoto and Kebbi governorship tribunals. ??
NJC is not a court of law. So, NJC cannot correct judgements. If you have conflicting judgments, you go back to that court to correct it unless you can appeal to a higher court. Assuming it is true that she gave conflicting judgements, only the court where the judgement was delivered can correct it. NJC cannot sit down and say this judgement is contradicting. People complaining about a verdict being contradictory must go to court and lodge their complaints there so that the court itself can reverse the ?wrong. This was what we did. Maybe for judges of the court, they are not so contradictory. It is the people who read it who are saying they are doing one thing here, another thing there. ??
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On the Sokoto governorship case, people are asking: if the NJC could not find Justice Bulkachuwa guilty, how could it pronounce Salami guilty of lying ?under oath against Katsina-Alu. ?
I do not know. I have never taken part in this. If all that I read from the papers are correct, Salami said he was told to change the panel or the judgement in the presence of one of the judges. Maybe one of those judges said the statement was not correct – he was not there. So, Salami was left alone. If he said ?he was told to do it in the presence of X and Y, yet X and Y claim it was not so; they were not there and Salami swore to an affidavit in a high court that this was what he ? did. Salami mentioned people.?
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What did those witnesses say? Did those people confirm what Salami said or what the ex-CJN said??
They must have confirmed one before they found that Salami was wrong. The NJC agreed with what the CJN deposed to and said that Salami lied.?
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Could this be why they feel the CJN is too overbearing??
?I do not know, he was not in the panel. There was a committee. You cannot say the CJN is overbearing over a decision he did not take. For the CJN to write, to defend himself that he did say this thing and submit the papers to these people, and for Salami to say there were other people who were there, what did these other people say?
I believe what they must have said was that Salami was wrong. ?Maybe, they were afraid of the ex-CJN? ?Maybe, I do not know. So, Salami said people were there when the CJN told him to go and do this. If Musdapher goes and tells the committee that he was not there or CJ did not say so, it means that Salami was lying. Forget about the use of the word perjury. He has lied, in ?normal language.?
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But some people have claimed that as a former CJN, you could have called Katsina-Alu and say don’t do this thing, since you were the one that swore him in? ??
If Katsina-Alu calls you and says he wants to do certain things, he calls for your advice, you will tell him. But if no one asks your advice, you don’t just go around giving it. All these things you are saying, I only read them from the papers; I am not personally involved. Of course, I am not happy with what we read in the papers. We were there. Even before I became the CJN, we were together in the Court of Appeal. I only came to the Supreme Court before him. We were together in Enugu. Nobody is happy. Judges do not do these things. If any colleague of yours has a problem anywhere, maybe it concerns you or he seeks your advice, you can give your opinion. But like the new CJN ( Musdapher) ?now, as an old man, you do not know the way he wants to run his court: you are not called, you are not asked to give advice and you go and tell him this is how he should run his affairs – there could be interference. But as a former CJN and senior colleague, analysts have often wondered why I couldn’t call Katsina-Alu and Salami to order. ?I am sure there are more than enough people who would have told them that this is wrong. I am sure if you go to the NJC where it all took place, people must be there who would have told them. But I was not part of it; I only read from the papers, but I am happy that I am not involved (laughs again). That does not mean that if my advice or opinion was sought, I would not be there, ?but I was never invited and did not seek audience with them. Justice Mustapha Akanbi and Justice Bola Babalakin were there. I think the elderly people, they tried to intervene. So, if the CJN, or whoever is the head, wants to go in a particular way and that is how he wants to run his regime, if you are outside, your advice will be of no use. Because if he is the head, he feels he is the head now, maybe he was not happy with the way we did it. He is not prepared to follow precedence or how others before him had done it. Then no matter who you are from outside, no matter how powerful, he will do it the same way.
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Still on the feud between Katsina-Alu and Salami. There have been allegations against the two jurists. But there was one particular allegation that Justice Salami was too close to a certain political ?party. Is there a way to create a buffer zone between political parties and judges so that everyone will know when they are going too far? ?
?There has always been a zone between us and politicians. We keep aloof, keep ourselves away from politicians – unless it has not been followed. How could you have cases in court and then you will be dining with the litigant at the same time?
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Another allegation was that a prominent political party was holding Salami responsible for the loss of four states. ??
I do not know what happened or the relationship between Salami and the concerned political party. But if the party has a case before Salami and Salami goes on attending its parties, honouring its invitations, obviously people will read a lot of meaning into it. But did Salami preside over all four ?states that the party lost. How could the party tie its political fortunes to Salami? I can’t buy it. But people will give their reasons. Any way, I do not know about it. I cannot comment on those things.
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You also left the matter of the SANs to him, you did not use your power?
?By that time, the exercise had not finished. He was my deputy in the privileged committee. I did not have personal candidates. He brought forward 14 of them. If those 14 had not been through the proper exercise, members of the Bar would complain, because you are suppose to report on all those candidates before you put them in. If he does not want to do it as we had been doing before, what do you do? Even before me, they did not do it the way it appeared now. Something has to be wrong any way. ?
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?In your time, it was always done in September, but this time, it was in August. ?Because he wanted to do it before he left. He retired on the August 28. I am sure he must have thought that if he left before it was done, they were going to review it.?
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We learnt that Justice Dahiru Musdapher gave evidence in favour of the ex-CJN? ?
So you understand now, you know what happened. So, Salami lied. Forget about perjury (laughing about it).?
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?Are you not surprised that the NJC which you headed, that people revered so much, will now get involved in this controversy? ?
That is another thing all together. Everybody in the legal profession was sad about this affair. They should resolve it. I am sure they are there trying to resolve the issues. ?
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Do you think Justice Musdapher can do it?
? If he does not want to do it, the NJC is still there as a body, although the lawyers say they have withdrawn for six months. All those things must be negotiated and solved, to get the lawyers back. Because unless there lawyers are there, NJC will be incomplete. Only judges are there. So, some of the issues should be resolved.?
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As a stakeholder, what will you be telling the NJC to do? ?
What will I tell them? To ?do the right thing.?
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But analysts have argued that the NJC crisis started with the Sokoto governorship tussle. Do you think the Supreme Court was right to have stopped another court, an independent court, from delivering its judgement? ?
That was what brought the whole issue. The whole matter began from there. As far I am concerned, the judgement was only stayed. So, it can still be delivered. But the matter was eventually dismissed. How could they dismiss it. It went on appeal. I do not know, maybe there was a wrong procedure. Before the Supreme Court can dismiss, there ought to be an appeal on the judgement of the Court of Appeal. I thought in the governorship tribunal, the Court of Appeal was the final stage. Only presidential could come to the Supreme Court. So, if you appeal there when you should not appeal, they will dismiss it. ?
The matter later got to the Supreme Court, just as petition on governorship election can now get to the Supreme Court. ? This election was an old one. If it ought to stop at the Court of Appeal, and you appeal to Supreme Court, they will dismiss it. You cannot approach the apex court on this issue. That the Court of Appeal was not allowed to deliver judgement is one of the things they should solve, because they ought to deliver judgement.?
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Can the Supreme Court reverse itself over ?the dismissal of the petition??
Petition is different from the judgement. The Supreme Court, as a court, can only dismiss an appeal on a judgement. If there was no judgement, what did the Supreme Court dismiss? This is one of the things they have to sort out now. They have to go and give the judgement.?
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?Are you suggesting that the Appeal Court should still deliver a judgement on that case??
A judgement should be delivered. As far as I am concerned, every court that hears a case must deliver a judgement. You are in a court to get judgement, so you must deliver a judgement. These are the things they should sort out.?
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You swore in Justice Salami. We will like to know your assessment on the suspended PCA? ?
All I know is that he is a justice of the Court of Appeal and later the PCA. I have no personal relationship with him, only official. His judgements are always sound as far as I am concerned. Nobody ever reported him to us or any of his judgements. He is quite disciplined. I never had any problem with him. We recommended him. ?
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There is this argument that the problem we have now is a personality clash, do you believe in that??
I understand they were classmates at the Law School in 1968. The former PCA (Justice Umaru Abdullahi) and I were also classmates. We began in Zaria together; l only ?finished before him. We were recruited on the same day to the legal course on the same day in Zaria. The following year, we went to England together. I finished before him, so I was his senior in his service. We began on the same day. I got to the Court of Appeal before him. I do not know what happened between Katsina-Alu and Salami. ?
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Allegations from WikiLeaks suggest that judges in election tribunal were being bribed, have you read any of them? ?
I take WikiLeaks with a pinch of salt. Anybody that comes to me with WikiLeaks has to have his own source – WikiLeaks is not a source. You cannot investigate how they get their information. If you are to believe them, you will do your own investigation to find out if they are correct. All they said about Obasanjo bribing me, I was not even the CJN at that time. So, how could Obasanjo have offered me money. I know they say he offered me money for Yar’Adua, I was not even the CJN in 2006, I became CJN in 2007. Whatever the case, whether from 2003, or to stop Atiku in 2006 from contesting, how could he have given anything to me when I had Uwais, the CJN then; I had Belgore, the second in command – I was the third. How could Obasanjo have jumped from both of them ?and bring me money as if I was the one to decide it for him. I did not even sit at the the panel to stop Atiku. I was not in the panel. ? ?
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?As a former CJN, what message do you have for Nigerians on the need for them to have confidence in the judiciary in spite of the contrived crisis between the ex-CJN and the suspended PCA??
A ?message to Nigerians or the judges? It depends on what the judges do that will lead to the confidence, or no confidence, in the judiciary. The action of judges is what gives confidence to the Nigerian public. It depends on what the judges are doing to them, or themselves.?
They see how the judges behave. To say they must have confidence in the judges even when they believe they are not doing the correct thing? Judges should follow the proper path of justice. Judges’ oaths of office are sacrosanct. They should keep to their oaths of office. If a judge keeps to his oath of office, then there will be no problem. It is when you do not keep to the oath of office that problems arise. Once the Nigerian public perceives that these people are not doing the right thing, it may have a negative effect. People should have the confidence in the things judges are doing – that they are doing it according to the law. If the law does not allow you to do anything other than the way you did it, then you stick by it. That is all. Let our own people get to understand that you are doing the right thing.?
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On the day you were retiring, how did you feel? ?
I was happy I was retiring at 70. It is not like you are telling me now that there were two CJNs. That was my own understanding. I made sure somebody was CJN before I left. ?He was the one, and he took over.?
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Did you anticipate that there would be this crisis? ?
How could I anticipate? This is their own creation. The reasons are clear. If they tell you the story, you will know when it started. I understand when it started was when they said no judgement should be delivered. Justice Bola Babalakin and others, they told him it was wrong, you do not do this type of thing in court. Like I said, if he did not want to listen, he was the CJN, you are not the CJN. He had the power to continue without you. Even if all the other people had told him it was wrong and he wanted to do it that way, what could anybody have done? He would say I am the CJN. ?What could be more painful than to have to tell someone that this is wrong and he tells you I am the CJN? How would you feel? You would rather not have gone at all. ?
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The new CJN, Justice Musdapher, what is your advice for him??
He has already told the nation that he will put things in order, ? he will do his best. There will be speech day on Monday at the Supreme Court. If you go there, I am sure that is what he will talk about. Before, the swearing-in of the SANs used to be done together with the CJN’s speech, but now the new CJN will only talk – which we do not normally do in the Supreme Court. The new legal year, we do not normally do it alone, we combine it together. ? ??