Onalaja, the Judge Who Dared the Military, Turns 80

Onalaja, the Judge Who Dared the Military, Turns 80

Justice Morenikeji Omotayo Onalaja

In his days on the Bench, Justice Morenikeji Omotayo Onalaja could best be described as a judicial activist. He dared to tread where some judges in the fiery days of military dictatorship would ordinarily not go. He circumvented the dreaded ouster clause in a Decree enacted by the military government and decided the landmark case in which General Zamani Lekwot who had been convicted and sentenced to death, was set free.

Born on July 24 1933, he attended C.M.S. Grammar School in Lagos and obtained his Bachelor of Laws degree (Honours) in 1956 and a Masters Degree in Law in 1958 from the London School of Economics and Political Science. He was called to the English Bar in June 1959 at the Inner Temple and the Nigerian Bar the following year.

On September 8, 1980, he was elevated to the position of High Court Judge in Lagos and later elevated to the Court of Appeal where he spent about 10 years before his retirement in 2003 having reached the statutory retirement age of 70 years. None of his judgments at the High Court or Court of appeal was ever overturned by the Supreme Court.

He was a Founding Editor of the Nigerian Monthly Law Reports and a Consulting Editor of the University of Ibadan Law Journal.
Justice Onalaja turns 80 tomorrow, Jude Igbanoi andYinka Olatunbosunpaid him a visit at his Ibadan home last Thursday. He went down memory lane on his days on the Bench and as Chairman of the Council of Legal Education shortly after his retirement.

Graceful Steps…
Pa Onalaja walked into his living room where the THISDAY LAWYER team awaited him with the graceful steps of a judge which naturally jolted everyone to their feet in acknowledgement.

He received the team warmly after being fed with the satisfaction that the heavy downpour had not caused them a huge inconvenience that could have stalled the interview.

He began by responding to the comment on his good and agile appearance which in his view should not count as a reason to prolong the retirement age of judges.

‘This issue has been coming frequently in discussions in recent times. I think the retirement age should be put at 70 for Justices. This is because when you turn 70, you still try and do something with the remaining part of your life and not spend all the time going to hospitals.’
During his tenure as the Chairman of Council of Legal Education, it was quite remarkable that that period witnessed quite a number of innovations, including creating more campuses of the Nigerian Law School. He offered some explanations on this.

‘Before my appointment to the Council, the number of universities in Nigeria kept increasing and we felt that the campuses of the law school should be increased to be able to cater for increasing intakes of law graduates. But the greatest achievement I would say I had was that I ensured that the students never went on protests or strike and that the lecturers cooperated with me. There was never a strike, even when the Academic Staff Union of Universities went on strike, the law school lecturers never did.

‘I have always said that the Council of Legal Education is a professional college and not a conventional university. Many people aspire to be lawyers because the legal profession leads and governs you throughout your life. Even after you have departed, the law still rules you. This is because after one’s death, your successors will have to apply to administer your estate, whether you made a will or not. In doing so, the law still governs you.’

On the issue of the rising corruption in the judiciary as well as the lower bench, Justice Onalaja made a comparison between what was obtainable during his time and the present state of affairs in the judiciary.

‘In our time, a great majority of the judges that were appointed were already very successful legal practitioners; this why in England today judges are appointed mainly from the ranks of Queen’s Counsel. In our time, lawyers were invited to come to the Bench because of their knowledge and practice of the law.

‘But these days, lawyers now apply to be appointed as judges and I think it is very wrong. While at the Bar, a lawyer should do many cases touching on various aspects of the law before he should be appointed a judge.’

When he was asked whether the repeated calls that there should be better remuneration and welfare packages for judicial officers so that corruption could be nipped in the bud should be taken seriously, he commended the effort of the government so far in this regard and said that it is important that remuneration is made in consideration of the cost of living.

‘If you want the job to be above board, and not subject it to such influence, you have to increase the salary to be commensurate with the economic condition. That will also help the officers not to be corrupted.

‘You will see that in appointing judges in our time, they appointed more legal practitioners than official members of the bar because by the time they approach you to be a judge, you should be able or must have been able to live above the average worker so that people will not be able to tempt you with corruption. They talk about corruption today but it affects the whole stratum of the Nigerian society.

‘The attitude of the National Judicial Council in taking serious steps against judicial officers who are found to have corrupted themselves is commendable. The way it is being done is having good effect on many judges.

‘But we have some of the judges who were appointed from the civil service. I remember in our time a judge who had no other car than the official car given to him by the government. You think that kind of judge won’t be careful not to do anything against the government so that they will not withdraw the car?

‘The government has improved on that aspect in that in that time what we were given as official car was the Peugeot 504 L. That was the lowest category of Peugeot cars but now they give them Pajero and all kinds of jeeps and money for maintenance.

‘But as a practitioner before considering going to the bench, you would have had your own property because if you are living in a government house and they ask you to retire where will you go and live? With all these incentives now one can say that the government is trying.’

His Celebrated Masters’ Degree…
Justice Onalaja was the youngest African in his days at the London School of Economics to earn a LL.M degree even when his contemporaries were satisfied with just LL.B. It is also noteworthy that the convocation ceremony was presided over by the Queen Mother who was the Chancellor. He expressed his joy at the memory with remarks on the number of years of study for the research intensive programme.

‘I want to thank God and my parents for giving me opportunity in that after my LL.B, they allowed me to pursue the post graduate. At the time, it was two-year programme.

‘I didn’t go for the Bar exams after my LL.B, until after my masters. I got encouragement from the late Dr. Teslim Elias, Dr. J.B. A. Coker of the Supreme Court and my senior at the Bar, Chief G.O.K. Ajayi SAN. He encouraged me to go for a Masters’ degree. In our Masters’ programme, we did a lot of research which became very useful in my practice back in Nigeria.

‘This is one of the reasons why I am not happy that in Nigeria they reduced the LL.M programme to a one year course. But now they have seen the difference and I am sure they will soon increase it to two years.’

His Famous Judgment…
Amongst his decisions on the Bench, one case stood out. That was the case of INCORPORATED TRUSTEES OF CONSTITUTIONAL RIGHTS PROJECT v GENERAL IBRAHIM BABANGIDA, in which General Zamani Lekwot stood trial. It occurred at the time the military passed the an ouster clause decree which barred courts from hearing appeals in such cases. He fearlessly went ahead and decided the case courageously.

‘To me the law is sacrosanct. For the Ouster Clause, it must be interpreted within certain judicial provisions. In the General Lekwot case, it was a fundamental human rights case. There was an inquiry set up by the Kaduna State Government that purportedly found Letwot and others guilty of fomenting trouble and trying to start a riot. It was really a matter between two tribes.

‘The law then was that anyone found guilty of such should be sent to the gallows. But fortunately for us, Nigeria as a member of the African Union signed a treaty which stated that if one is dissatisfied with judgment of a tribunal he can apply and appeal to a conventional court.

‘The matter came before me and I considered the Nigerian law and the applicable international law and found that you cannot preclude a person from going to court to enforce his fundamental rights. Nigeria was a member and still a member.

‘When there is a conflict between international law and a municipal law on the same issue, the international law must prevail. That was exactly what I used. At the time, they could not appeal to any Nigerian court. Appeals could only be made to the African Court which was based in Zambia.’

Should a Retired Judge Return to Practice…?
In reference to the 1999 Constitution’s provision that retired judges cannot engage in active legal practice, Justice Onalaja’s view was sought on whether the law was indeed necessary.

‘Speaking for myself, I don’t think that after one has retired as a judge, one should be engaged in active legal practice.
‘The first problem you will have is how will you be addressed in court? What kind of gown will you wear? If a judge wants to practice after retirement, he should set up a legal practice and employ lawyers who will be going to court to handle cases for the chambers. The judge can guide the lawyers in preparing their case, but he should not appear in court himself.

‘For the dignity of the profession, I don’t think judges should engage in active legal practice and be appearing in court.’

On Gani Fawehinmi…
The late Human Rights Lawyer, Chief Gani Fawehinmi SAN earned the title Senior Advocate of the Masses (S.A.M.) long before he was called to the inner bar. The unwillingness of the lawyer to apply for the rank of a Senior Advocate of Nigeria did not go unnoticed by the public many of whom thought he was being deprived of the rank. Justice Onalaja told the story behind the monumental call to the inner bar which he was instrumental to.

‘I thank God! Gani refused to apply to be SAN and some lawyers who were not as good or as professional as him were getting elevated. His juniors in chambers came to me and requested that I persuade Gani to apply.

‘I happened to know through our interactions that Gani was very close to his mother, so we decided that we should go to his mother and that she would challenge him to apply. We planned that his mother should tell him that he had committed an offence which was why he was not being considered for SAN.

‘His mother told him “You are very close to me, you should have told me in confidence that you committed an offence in the profession which is why you are not there.” He told his mother that there was nothing of the sort. The mother said “Okay, if that is true go and apply!” Gani thereafter applied and he created a record. In the history of appointments of Senior Advocates in Nigeria, Gani is the only person that nobody raised any objection to his being awarded Silk.

‘Justice Lawal Uwais was the then Chief Justice of Nigeria. So, without a single objection from anybody, on his own initiative Uwais went ahead and appointed Gani. He then went to the meeting of the Privileges Committee and told them that he had already appointed Gani. Up till today there has been no other person that has had that record of nobody objecting to their being made SAN.

‘Gani in his lifetime made available to me and the late Justice Kayode Eso complimentary copies of the Nigerian Weekly Law Reports. Up till this day, they give me those copies, I don’t know if they still send to Justice Eso’s Chambers. I just collected this week’s copy’.

Commentaries from the Bench…
In his book, Commentaries From The Bench, which is a compilation of his lectures between 1998 and 2003 , the retired judge spoke eloquently on ‘Abuse of Judicial Process’, ‘The Courts and the Problem of Compensation of Land Rights’, ‘Contempt of Court’, ‘Constitution and Structure of the Courts’, amongst other topics.

While addressing the issue of abuse of power, he pointed out the need for the electorates’ responsibility in safeguarding the rule of law. He assessed the culture in developing countries where public outcry is often not loud enough to force a public office holder who has a record of misconduct out of office.

His use of language in the book establishes commonness with those who may not be learned in law by explaining some legal terms and interpreting Latin expressions. Also, many citations of his past judgments are used to corroborate his statements of facts. His writings express such sense of humour that could not be readily associated with a judge who spends more time with books than at social gatherings.

His introductory paragraphs are attention-grabbing, setting the pace and tone for the paper presentation. To illustrate, in The Lawyer and The Ouster Clause which he delivered in honour of Justice Dr. Mrs Olateju Olagbegi on her elevation to the High Court Bench of Ondo State, his writing demonstrates his proficiency at the use of figurative expressions that inscribe vivid images in the minds of his listeners.
He sometimes addresses the fears of his audience in his opening remarks. Here is an example:

‘This topic which touches fundamental issue of the ethics of the profession cannot be dealt with in depth in an atmosphere of good wine, dining and company of a bevy of ladies so tantalising and not in the company of Better Life for Rural Women. The only solution is brevity so as not to spoil the appetite and this grand occasion.’

Nonetheless, the speech shows depth of research as well as an admirable touch of articulation, rounding off on the same degree of humour that precedes it.

‘In conclusion, I hope I have not spoilt your sumptuous dinner with the rhetorics of The Lawyer and the Ouster Clause. Thank you for your patience and rapt attention. Having had a free dinner, I shall look forward to invitation in future.’

He does not linger unnecessarily on the definitions of terms but launches straight into legal authorities to elucidate his points. He raises questions and provides answers sometimes by comparing certain judgments delivered at the various court levels.

The Judge and Death Penalty…
As a former judge of the Appeal Court, he would have delivered judgments that would have overturned the ones from the lower court especially ones that involved capital punishment. The judge spoke on the need to exercise caution while handling such sensitive matters. He however did not condemn the use of death penalty in our criminal justice system.

‘The Death Penalty is religious. In Islam you are enjoined not to kill and if you kill, you will be killed. For the Christians, in the 10 commandments of Moses, it is stated that thou shall not kill. So, if you kill you will be killed.

‘It is not easy for the judge imposing death penalty because from my own experience after you pronounce death penalty on an accused person you will be worried each time that you have sentenced someone to death.

‘But they should still continue to impose death penalty to act as a deterrent to other people. If you don’t, you will have more killings. Personally speaking, when you say you avoid death penalty, you put the accused person in prison and you’ll be using public money to feed him for maybe 20 or 30 years. I’d say because of religious grounds as seen in the Qur’an and the Bible death penalty stays.’

Most Challenging Experience…
The question of recalling his most challenging experience in practice and on the bench ironically turned out to be the most challenging question as he looked back at a career that was full of numerous challenging situations.

‘This is about the most difficult question to answer. When you take your oath of office, you would say that you will administer justice to all manner of people without fear or favour. So, you decide the case before you under the rule of law and apply the proper law. If it is a case of contract or tort where you have done a wrong to somebody by killing somebody with a motorcar, you cut short his life. That person has dependents, who will take care of them?

‘You take all that into consideration before awarding damages and to show you that the courts don’t rely on technicalities in that type of case I will give an example of one case in Oyo state where one Bello was charged with drug trafficking and was convicted.

‘He had many people who were dependent on him. After the conviction, he appealed but before his appeal was heard his death sentence was carried out. The family sued the Oyo state government for damages. The case was very technical but the Supreme Court said no, this is not a question of technicality. They relied on the principle that if you have a right you must have a remedy. The Supreme Court said, look, no technicality. These people are dependent on this man. They awarded damages against the Oyo state government.

‘You don’t toy with the life of a human being. Once you have unlawfully killed somebody, the dependents must have a remedy provided the death was caused by the negligence of the person. Before 1946, once you could establish contributory negligence, that is the end of the case.

‘But they passed a law that you would weigh the contribution of a plaintiff and weigh the contribution of the defendant and then when you apportion the blame. For instance if you are to award N100,000 the plaintiff contributes 40 percent, you will give him 60 percent. But before this amendment, they would have thrown out the case.’

Passion for Law…
A writer once described him: ‘He breathes law. He writes laws. He espouses law with passion.’ He was asked if such passion was transferred to any of his children.

‘Two of my children are lawyers but not legal practitioners. My daughter studied law to please me. She said that she was more interested in insurance. After she was called to the bar, she came and told me that ‘I have just gone to satisfy you. I am more interested in Insurance than law.’

‘She could not undergo the tedium of reading many judgments and she did not think she could cope with that. She went to study insurance. I said go ahead. I sent her to the London School of Insurance and when she finished, she came back and did insurance.

‘My other son who studied law said that he was more interested in business than going to court and having sleepless nights to read and research cases and judgments. He went into business. I am only praying and God has answered my prayer. Two of my grandchildren are studying law. But I will try and make sure that they practice it’.

In memory of his wife, Justice Onalaja sponsors an award in recognition of journalists who have distinguished themselves in the area of judicial reporting.

‘My wife died and she was very helpful and contributed greatly to my achievement in my legal profession. The chairman of the Diamond Award for Media Excellence (D.A.M.E) is my son-in-law. Each year, they have DAME award for the media.

‘They had different categories like news reporting and parliamentary reporting. I noticed that there was no award for legal correspondents. I decided to sponsor the award for the legal reporters in memory of my wife’.

Judicial Independence…
In defending Professor Soyanwo when charged with obstructing the movement of the Premier of the Western Region, Chief S.L. Akintola , the judge saw that the judgment of the Court of Appeal on the matter reflected a degree of judicial independence that is very desirable.

‘That is what we call the independence of the judiciary. You decide cases according to the law without favour. When I was defending Professor Soyanwo, he was driving on the road that leads to UCH, Elizabeth road. The Premier was coming from the Parliament and was blaring sirens and other vehicles were getting out of the way. Professor Soyanwo said he did not hear their sirens and he was just driving along.

‘They charged him for obstructing the Premier’s movement. I looked at the law and gave the definition that a moving vehicle cannot constitute an obstruction. The court upheld it. If they had ruled against me at the Appeal Court, I would have gone to the Supreme Court.’

On the Rivers’ State Crisis…
The Nigerian people have watched in awe the drama at the Rivers State House of Assembly where lawmakers resorted to violence in settling disputes. Justice Onalaja did not miss the ugly episode on television and shared his view.

‘When this issue was developing, I cast my mind back to the 1962 situation in the Western region. As the events unfold, I said to myself that we do not learn from history. I hope that it would not lead to a declaration of a state of emergency in Rivers State.

‘What I will impress on Nigerians generally is that we should vote the right calibre of people into parliament, not politicians, for most politicians do not have any other thing apart from representing their people in parliament. We should elect serious minded people.

‘I was reading in the papers that at least people who should be going to parliament must be graduates. If a graduate goes to parliament he will be more level headed than an uneducated politician who relies on his politics. That one must have developed arguments for and against you and you will take your time in deciding whether your argument is right or your opponent ‘s argument is right.

‘You will not take laws into your hands or be attacking your opponent. The more we have educated people in parliament the better for the people. But even the students in the universities don’t take arguments. They resort to attacking and assaulting themselves. Lawyers may oppose themselves vigorously. But when you get out of the court, you don’t beat yourselves. You have to wait for the decision of the court.

‘That is why in civilised countries, majority of their parliamentarians are lawyers because they have been trained to have opposition and you do the argument in concrete terms not by attacking your opponent.

‘I thought that our parliamentarians must have learnt their lessons from the 1962 Western Region crisis. It was as a result of that the army eventually took over the country. If one remembers that, then you won’t resort to assaulting your opponent. I would say that those who resort to violence should not be allowed to come back to parliament.’

No Regrets Except…
Did Justice Onalaja have any regret about not being elevated to the Supreme Court before his retirement? He answered that his regret only lies in the use of federal character as this has not been in the best interest of the course of justice.

‘One’s position in life is ordained by God. But what is wrong with elevation to the Court of Appeal and the Supreme Court is what we call federal character. If it is the turn of your zone to be elevated to the higher court, you see some judges they would change their state of origin and claim that I am from so and so state so that they can be considered for elevation. Then there is a law that married women cannot take the state of origin of their husband but that they should go back to their own state of origin.

‘Now, I thank God. Of all the judges in Nigeria from the Supreme Court downwards, I am older than any of them because I had spent over ten years at the bar. But since I came from a state which produces more lawyers and more judges, God has ordained that that was where I would stop.

‘The only thing I will say is that this federal character in elevation of judges should be based on their production. That is the reason you can’t compare judgments of the old Court of Appeal and the Supreme Court with the present situation because it is not so much experience that is taken into consideration and we have been doing this federal character for over 50 years.

‘Won’t they put a stop to it? It has not paid off and it will not pay. The governor puts somebody although he won’t come directly. The Chief Judge will not be in position to oppose it. With the independence of the judiciary, now that they are paid directly from the consolidated funds and not from the state, the judges will enjoy more independence than we did in the past.

‘But speaking for myself, I thank God. You can make further investigation. There is no judgment of mine whether at the High Court or at the Court of Appeal that was set aside by the Supreme Court. No judgment I repeat it. The reason is that I had the experience at the bar.

‘Then as a judge, I have to weigh the two sides properly before reaching a decision. One retired justice of the Supreme Court once said that one day they had a judgment to consider. He was joking and he said he went with a determination to offset a judgment of mine but he didn’t.

‘That is why in England, the very experienced legal practitioners that were awarded QC were called to bench. You are not appointed a judge on promotion. Once you have gone into Ministry work, you would have taken it that you do not want to be a judge. It is very rare to appoint people who were not in the bar.

‘But here it does not matter whether the person you want to appoint is good or not. They should scrap federal character in appointment of judges and go strictly with the rules of appointing judges not based on your state of origin.’

Pa Onalaja took his time to autograph of a copy of his book, Commentaries From The Bench, while apologising for the legibility of his writing as one who lives with Parkinson’s Disease which was not even betrayed in his acute memory of events.