IS A SAN ACCEPTING TO SERVE AS HIGH COURT JUDGE A TABOO?
Recently, the National Judicial Council (NJC) released the names of the newly appointed judicial officers into our various superior courts of record .One name on the list that has generated unnecessary controversy is that of SAFIYA UMAR BADAMASI, the Solicitor General and Permanent Secretary of the Katsina State Ministry of Justice.
Badamasi was elevated to the rank of Senior Advocate of Nigeria (SAN) in 2019. To the best of my knowledge, she is probably the first female Senior Advocate of Nigeria from the far North or what some will call “Hausa/Fulani extraction”.
The wave of criticism that has greeted her appointment as a judge of Katsina State High Court by some lawyers has been of a great concern to me as a lawyer and a student of history. That is the reason why I decided to write this piece so as to educate some of our colleagues who seem not to be well familiar with the history of legal profession in this country.
I was not impressed by the comments of some of our learned colleagues.These comments are abound on the social media.While some have felicitated with the lady and congratulated her for stepping into history as the first Senior Advocate of Nigeria (SAN) to accept to serve as a High Court Judge, some said that her appointment to the High Court Bench was “a wasted slot”.
Some said that she was not doing well in her practice and that was why she accepted to serve on the High Court Bench instead of opting for the Court of Appeal or Supreme Court.
Can any lawyer or SAN still serving in a Ministry of Justice have his or her own law firm to justify the allegation of not doing well in practice? Can any lawyer or judge just jump to Court of Appeal or Supreme Court this time around? One of the ugly sides of the social media is that you just see some people making comments without knowing what the issue of discussion was or is all about.
Is a Senior Advocate of Nigeria (SAN) accepting to serve as a judge of any High Court a taboo? Some lawyers may see this as a taboo as a result of what had happened in the past in this country.It was in this country under the Military dispensation that late Professor Taslim Olawale Elias was appointed as the Chief Justice of Nigeria when he was serving as the Attorney General of the Federation under General Yakubu Gowon as the Head of State in 1972. Under the Military regime of General Olusegun Obasanjo, the late Dr. Augustine Nnamani, SAN was in August 1979 also elevated from the position of the Attorney General of the Federation to the Supreme Court as a Justice of that Court.
Justice Elias was removed as CJN after the military coup that ousted General Gowon as the Head of State. Elias later made it to the International Court of Justice (ICJ) where he eventually became the President of that Court. Justice Nnamani unfortunately died on the Supreme Court bench while actively serving his fatherland.
At the bar, Elias made it as Queen Counsel (QC) while Nnamani made it as the Senior Advocate of Nigeria (SAN). In the history of Legal profession in Nigeria, these are just two great Nigerian jurists as holders of the prestigious rank of SAN or its equivalent i.e. KC or QC that made it to the Supreme Court without earlier serving as judicial officers in any capacity.
To me, for a Senior Advocate of Nigeria to accept to serve as a judge of a High Court is not a taboo.
Few years back, there was a clamour for the appointment of lawyers particularly the Senior Advocates of Nigeria directly to our appellate courts, both the Supreme Court and the Court of Appeal. Some Senior Advocates of Nigeria (SANs) actually showed interest and ready to accept elevation directly to the Supreme Court as that was seen as the appropriate place for their status as senior lawyers.
That was to say that if Elias and Nnamani could be elevated directly from the official bar to the Supreme Court, why not they? The Elias-Nnamani precedent has created the impression among some lawyers that the appropriate place for any SAN wanting to be elevated to the bench is the Supreme Court as anything less than that will be inferior to the status of SAN. This is the kind of impression that is being shared by some lawyers on social media on the elevation of Safiya Umar Badamasi from the rank of SAN to the High Court Bench.
Such impression or thinking is erroneous and I personally can not submit to such thinking. The desire to serve one’s father land or nation should be a question of love and patriotism. It should not be about bigness status. Any Senior Advocate Nigeria (SAN) that is living under the false impression that is bigger or superior to the position of a High Judge is just living in the world of fiction. I am not here talking about material wealth because position of a judge is not for money making. A lawyer who wants to make money should have no business going to the bench as a judicial officer.
It was from the United Kingdom that colonized us that we borrowed our own fashion of Senior Advocate of Nigeria (SAN) modeled after what is still known in Britain today as Queen Counsel (QC) or King Counsel (KC). Many Nigerian lawyers attained that rank before we became a Republic in 1963 and having gotten our independent in 1960. That late eminent English Jurist, Lord Denning was a King Counsel (KC) before he was appointed as a High Court judge in England. That tradition still continues in England till today.
On the last count, 17 of the last set of judges that were said appointed in England are Queen Counsels out of 64 applications received by the Judicial Appointment Commission (JAC) in that country for the jobs . As developed as United Kingdom, if lawyers who have attained the rank of QCs can engage in the rat race to become judges, then what is happening to our own SANs here who are shying away from the positions of High Court judges but are willing or ready to go directly to the Supreme Court if appointed? Is the remuneration for the position of a High Court judge not attractive enough? Should the remuneration be a factor when it comes to serving one’s father land?
Badamasi has indeed secured a place for herself in the history of legal profession in Nigeria for being the first SAN going to serve on the High Court bench as a judge. From my research findings, age still remains on her side and there is every likelihood that she may from the High Court get to the Court of Appeal or even further to the Supreme Court.
The reason why I am saying this is that being a holder of SAN on the High Court bench may be an added advantage for her. If after sitting on the High Court bench for few years and decides to apply to the Court of Appeal as appellate judge whenever there is a vacancy in her geographical zone, I doubt if the selection committee or the National Judicial Council will be able to turn down her application.
I know for sure that her SANship will do the magic of her being selected. The lady is following the footstep of the great Lord Denning, the Master of Rolls. I doubt if there is any lawyer in this part of the world that will claim ignorant of that popular English jurist, He was a KC at the English Bar before accepting to serve as a High Court judge on the English judicial bench. He had so many brilliant judgments to his credit including the controversial ones.Even after his retirement from the bench; he did not drop his pen as he authored many books including: The Discipline of Law; The Due Process of Law; What Next in Law; The Closing Chapter; The Family Story and The Leaves From My Library. Lord Denning lived for 100 years and many of his Obiter Dictum till date have assumed the status of Ratio Decidendi.
The argument by some of our learned colleagues that the lady has degraded herself by accepting to serve as a judge of High Court after being conferred with the rank of Senior Advocate of Nigeria is an argument that cannot hold water. To deflate that argument, can those lawyers accept that, that our great Supreme Court jurist, late Hon. Justice Niki Tobi degraded himself when he accepted to serve as a judge of the High Court of Rivers State after being a Professor of Law at University of Maiduguri? He was not only a Professor; he rose to become a Deputy Vice Chancellor in that university before going to the High Court bench as a judge. Did Niki Tobi not rise from the High Court to the Supreme Court? His profile actually did that magic.Niki Tobi adopted the Lord Denning’s style of writing judgments.
Today, we now have holders of Professorship and Doctorate degree (Ph.D) serving as judges in of High Courts. Can those lawyers also say that the late Hon. Justice J.I.C Taylor who left the Supreme Court as a Justice of that court to serve as the Chief Justice of the Federal Territory of Lagos and later High Court of Lagos State also degraded himself for doing that?
I once used the example of Justice Taylor to disagree with a learned silk who argued that Section 396 (7) of Administration of Criminal Justice Act (ACJA) 2015 was a frontal attack on the Constitution in the sense that it allows the Court of Appeal Justices to go back to the High Court to conclude the criminal trial they were handling before they were elevated to the Court of Appeal. According to that learned silk, those judges are only degrading themselves, the position which I vehemently disagreed with that the provision was not in any way in conflict with the Constitution but only meant to checkmate the unnecessary delay in the criminal trials. My position was later confirmed by a Court of Appeal decision as the right one. I want again ask our learned colleagues on the other side of the argument that : Can the late Hon. Justice Dan Ibekwe be said to degrade himself when he left the Supreme Court to become the first President of the Court of Appeal on its creation? My answer to the question is capital NO! Those great Nigerian jurists did that in the spirit of patriotism and the love for their fatherland.
There is this important point that we all need to note, I don’t think it is proper for anyone to condemn another for chosen what that person wants for himself or herself. The discretion by any SAN or lawyer to accept appointment to serve as a judge of any High Court or any other position should be a question of personal choice. For any SAN or lawyer to get appointed directly to the appellate court whether the Court of Appeal or the Supreme Court may not be easy for now except the 1999 Constitution in operation under this constitutional democracy is amended by the National Assembly to be specific on that issue. Under a Military Regime, the soldiers do not need to wait for the amendment of any constitution before they do whatever they like because they combine both the Executive and Legislative powers together. The moment they seize power, they suspend the existing constitution and rule through decrees and edicts that are littered with ouster clauses, that is to say you cannot challenge their actions in any court of law. But under the democratic system where the constitution is in place, appointment of judges of superior court of record are regulated by the Constitution.
In reality, when it comes to the elevation of judges to the appellate courts, those in the system always prefer those in their midst as those trying to come from outside system are seen as strangers. In foreclosing the chance of SANs or lawyers being elevated directly from the bar to the appellate bench, Hon. Justice Ibrahim Tanko Muhammed ,the Chief Justice of Nigeria (CJN) did not make his intention a secret, he had said openly towards the end of 2019 during a conference of the Justices of the Court of Appeal that :
“... if someone is brought from outside, it will take time for such person to fit in .I am with the old regime that we should train those who are already on the line.If you want to be a judge, you should join at the High Court; most of them do not want to join the High court.That is the best place to start.I don’t think it will be right thing to appoint somebody straight to the Court of Appeal, because you have to train and teach him/her…”
By taking the hint of the CJN, is Safiya Umar Badamasi, SAN setting the pace for others to follow? This question will only be answered by the passage of time.Badamasi has now fallen into the class of Solicitor General and Permanent Secretary of a State Ministry of Justice who are conferred with the prestigious rank of the Senior Advocate Nigeria (SAN) while serving in that capacity, the first in Nigeria being Mr. Lawal Pedro (SAN) formerly of Lagos State Ministry of Justice. Pedro authored the brilliant book titled: “Jurisdiction of Court in Nigeria”. While I once again congratulate Hajia Safiya Umar Badamasi for stepping into history as the first SAN to serve as a judge of a High Court in Nigeria, I equally pray the Almighty Allah to guide her and other appointed judicial officers in the service to their fatherland.
NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.
Abdulrasheed Ibrahim can be contacted via the following;