Reminiscences with Justice Abubakar Bashir Wali (Rtd)
Justice Abubakar Bashir Wali is one of the pioneer legal practitioners from Northern Nigeria. The first judge of the Shari’ah Court of Appeal from the North, rose through the ranks to become a justice of the Supreme Court. He spoke to Daily Trust on Sunda
Why did you spend all your civil service years in the judiciary?
Well, the simple answer is that I came from a judicial family. The first judges in Kano were from the Gainawa family. My father started working with the Kano emir as scribe in his court. At that time, the emir’s court was functional. Later, he was appointed a district court judge, called Alkali.
They ran the biggest district in Kano State, then known as Dawakin Tofa, before it was split into four local governments. I was born in Dawakin Tofa in 1932, but I started my education in Kano because my father was promoted to the Chief Alkali of Kano in 1942, so he was moved from Dawakin Tofa to Kano. As I said, my forefathers were from the judiciary. Ours is a lineage of judges.
The first appointees in the judiciary by the Fulani from Sokoto were members of the Gainawa family. Since then, majority of the appointees in the judiciary have been people from the family. The Khadis, now called judges of the area courts or native courts, as well as the scribes in both the emir’s court and various registrars in these native courts, are from this family. So it was not surprising that I was brought up to do what my father did. My elder brother, the late Ali Bashiru Ali, was also an area court judge. So it’s not surprising that I spent my civil service years in the judiciary.
How did your journey into the judiciary start?
My journey into the judiciary started in 1945 after I completed my primary education. I went to Kano Middle School, now Rumfa College. I was there for five years, after which I joined the Kano School for Arabic Studies, formerly called the Law School. The name of the school was changed because the set-up and the subjects taught were revised and re-organised.
English lessons were introduced to raise the level of education from Middle Four to the standard of Middle-Six, which is equivalent to the West African School Certificate (WASC).
When I completed the Middle School in 1950, I went to the School for Arabic Studies and spent four years. The first two years were to complete part of the secondary education we started from the Middle School, and the other two were for us to specialise. One either trained as a teacher or someone who would work in the judiciary.
When I completed my education in the School for Arabic Studies in 1953, the then Emir of Kano, Muhammadu Sanusi, decided that people like me should be posted to work in the districts as scribes. So in March 1953, I was appointed as a scribe in Sumaila District. The father of the late Galadiman Kano, Turaki Hashim, was the district head of Sumaila District. I stayed there for about seven months. I was alone there because Balarabe, the son of Turaki Muhammadu Hashim, who held the post of the senior scribe, had left the place and nobody was sent to replace him. I was alone for almost six months before another senior scribe was posted. He was the father of the former Chief Justice Dahiru Musdapher. He was posted to Sumaila District from Birnin Kudu. I was with him for about two months and I was transferred to the Central Administration, that is Madaki’s office.
I was attached to the District Council, where I worked briefly under the leadership of the present Sarkin Bai and the district head of Dambatta Local Government. I worked with him for about two months before he was appointed as district head of Dambatta. When the Dan’Iya Ado came in, he was transferred from Kaduna. I worked with him for one and a half years; and within that period, I was awarded a scholarship by the Northern Nigerian Government to go to Sudan to learn more about publication of Islamic pamphlets and calligraphy. That was in August 1955.
When I went to Sudan, I was lucky that the late Na’ibi Sulaiman Wali was also there pursuing the same type of course. When I arrived at Khartoum, the driver of the Ministry of Education, who came to take me, asked whether I knew Na’ibi. I said he was my relative and he took me straight to where he was. I stayed with Malam Na’ibi from August, up to almost the end of October when he returned to Nigeria. He was about to complete his course when I went to Sudan. But luckily for me again, the late Muhammadu Abubakar Rimi, Professor Shehu Galadanci, the late Hassan Gwarzo, the late B.B. Farouq and one other person, an ambassador, I think he was from Ilorin, were attending a course in Sudan as teachers. They used to come to my place, which was about 100miles from Khartoum, and we would spend some time together. We related like that up to the end of December when they completed their courses and went back to Nigeria.
When they left, I became the only Nigerian student in Sudan, and by September I also completed my course and came back to Nigeria. When I came back, I reported to my boss, who was the Madakin Kano because the administration of the districts was under the Madaki’s office. He said I should go back to where I was before I travelled to Sudan. So I went back to the District Council office and worked with the late Malam Mansur Yola, who was an assistant to the person heading the place.
Shortly after that, I was invited by the Northern Nigerian Government to go to Kaduna for an interview for appointment. After the interview, I was posted to the Northern Literature Agency (NOLA) in Zaria. I was lucky to find my relative, Na’ibi Sulaiman, working there. When I saw him, he welcomed me and provided a place for
When I went for the interview, the late Abubakar Imam saw me and asked what I went for? When I told him, he said I should go for Law as they would soon start a legal course at the Institute of Administration. He said I should go back home and wait for the law course. That was the end of it
me in the same office. We also stayed in the same house with some of our colleagues, up to the time the NOLA was re-organised into the Gaskiya Corporation.
At that time, a course for an assistant divisional officer was going on, so I applied and was permitted to go to the Institute of Administration for the course. When I went for the interview, the late Abubakar Imam saw me and asked what I went for? When I told him, he said I should go for Law as they would soon start a legal course at the Institute of Administration. He said I should go back home and wait for the law course. That was the end of it. I left without participating in the interview because he was the chairman of the selection committee. I came back, and after two weeks, a letter of offer was sent to me by the institute, that I was one of the 11 candidates selected to read Common Law at the Institute of Administration.
When was that?
That was in 1956. When we started the legal course, the late Justice Aikawa and I were from Kano while the rest were from other states and provinces in Northern Nigeria. The Bar Examination, part one, was done here in Nigeria before you would go to England for the part two, which is final. And you would not be allowed to go to England until you passed all the six subjects taught here in Nigeria. But before then, I was posted to Kaduna High Court to be an
interpreter/translator. Again, I met Malam Na’ibi Sulaiman Wali. We stayed in the same house along Jama’a Road. I was with him till I completed that course.
I was invited by the Scholarship Board to the United Kingdom to complete the part two of the course. In the last part, it was either you read Islamic Law of Inheritance or English Land Law. I chose Islamic Law of Inheritance, which I was able to complete within two years. So by the time I finished in 1963, instead of coming back to Nigeria, the Scholarship Board said I should go for attachment with one of the law practitioners in England. So my late colleague, Justice Muhammadu and I were attached to a lawyer for six months. After six months we came back to Nigeria. That was in April 1964. By the time we came back, a three-month course for Nigerian lawyers who qualified in England had already started in Lagos. I tried to join them, but the Scholarship Board said there was no need to hurry, so we had to wait.
I was posted back to Kano and attached to the Ministry of Justice, while my colleague, Muhammadu, was posted to Kaduna and attached to the Office of the AttorneyGeneral, which was supervised by Justice Mamman Nasir, who was the minister, not attorney-general.
I worked in the Kano Ministry of Justice with one of my colleagues, the late Abubakar Sambo. Sambo was in the Ministry of Justice while the late Mu’azu Muhammad was a magistrate. Later, we proceeded to the Nigerian Law School. I completed my course in December, and when I came back, we reported to Kaduna, and Abubakar Imam was still there. He was the chairman of the Northern Nigeria Civil Service Commission. He was also the head of the committee saddled with the responsibility of all appointments in the judiciary and other ministries. When he saw me, he said, “You don’t need to be interviewed, you are already in the service and we have already decided that you would go to the judiciary as a magistrate.’’ I was about to argue with him, but he said, “Look, you have no choice; this is what we have chosen for you, so just go.’’
After the interview, we were asked to report to the Ministry of Establishment in Kaduna. They gave us money to buy tickets to proceed to Jos, where we received our training as magistrates. I remained in Jos up to the time I was transferred to Maiduguri.
You mean you started practising as a magistrate?
Yes, I started as a magistrate in Jos. I was trained under the leadership of Berth and James, who were acting chief judges. I was transferred to Maiduguri to start the first permanent magistrates’ court.
I was in Maiduguri only for eight months because states were created and people were transferred to their states of origin. After working in Maiduguri for eight months, I was transferred to Kano. By the time I came back to Kano in March 1968, the late Audu Bako was the governor of Kano State. I was posted to work in the magistrates’ court. Sani Shamsu was also appointed acting chief magistrate at that time. In the morning, we would come and the chief magistrate would sign all the first information reports or new cases coming in and he would distribute it to courts at 8:45am. We would collect the new cases assigned to our various courts and proceed to our courts. After sittings we would come back to Bompai Road, where we would stay until closing time, which was 3:30pm.
I was there when I was appointed an acting chief registrar. When I was acting chief registrar, the late Abubakar Gumi informed me of a plan to appoint me as a judge of the Shari’ah Court of Appeal. I told him that although I read Law, I had never been an area court judge and I had never tried the application of Islamic law. He said I would pick up while doing the job, explaining that it only required listening to the proceedings. I insisted that if I did that I would block the chances of other people, particularly judges in the Upper Area Court who had been in the system for a very long time. But he said they knew the type of people they wanted. When I insisted, he called my elder brother who was then a High Court judge because they were classmates in the Nigerian Law School. My brother told me to accept it, and that was the end of the matter.
When I came back, the appointment came and I thought it was a joke. So from this part of the country I was the first judge of the Shari’ah Court of Appeal. I was appointed the Shari’ah Court judge in 1970. I later moved from Shari’ah Court to High Court. After three months in the High Court I went back to the Shari’ah Court. I moved from Shari’ah Court to High Court when any of the judges went on leave until I completed my 10-year post call. After that, I was appointed a substantive judge of the High Court.
At that time, there was the decision to create the Shari’ah Court of Appeal for each state. At that time, the late Hamza Mohammed was also appointed a Shari’ah Court judge in Kano, so we were the only two Shari’ah Court judges. But before the exercise was completed, the late Hassan Gwarzo was appointed a Shari’ah Court judge. He was a senior lecturer at Bayero University.
Although I was in the High Court, I attend my chambers in the Shari’ah Court, so three of us were sitting in the same chambers. So, when the proposal for the appointment of somebody as the Grand Khadi of Kano came up, they consulted me. I said we needed someone who could adequately represent both Kano and the Shari’ah Court of Appeal, so I advised them to appoint Hassan Gwarzo, and luckily, he was appointed Grand Khadi.
Because of the problem that arouse during the 1979 constitution drafting, myself and Usman Mohammed, who were retired justices, were selected to establish the division of Shari’ah Court of Appeal. As I was a bit senior to Mohammed, I was appointed to head the section and posted to Kaduna. Mohammed was posted to Lagos, but whenever we held a session, he would come from Lagos and join me. We were lucky to have the late Maidama, who was very learned in Islamic and common law. He was appointed into the Court of Appeal and posted to Kaduna. So, together we set up the Shari’ah Court of Appeal. Before I left that place, Aikawa was also appointed and we became three. Whenever there were appeals from Shari’ah Court they would join me, either in Kaduna or Jos. We selected Jos to hear appeals from northeastern states. When the appeals were ready, we would move for just two weeks; after that we would come back.
That was how things were going until sometime in 1987 when Justice Mamman Nasir, the present Galadiman Katsina, who was the president of the Court of Appeal, told me that I was being considered to go to the Supreme Court, and there would be an interview for candidates by the Federal Judicial Service Commission. So he asked me to go to Lagos. I went to Lagos during Ramadan.
At that time, Justice Fatai Williams was the Chief Justice of Nigeria. We went to his chambers and he asked me to be with his secretary until other members of the committee came. Unfortunately, the meeting could not hold because they could not form a quorum. And he asked me to come back.
After some days, Justice Mamman Nasir came and told me that my name had been submitted to the Judicial Service Commission for consideration. At the end, four of us: Justice Abba Aji, a Yoruba, who was a justice of the Court of Appeal in Jos; Justice Nnaemeka Agu, an Igbo who was in Lagos; myself in Kaduna from the North and another person from the West, who was the Chief Judge of Ogun State (I can’t remember his name), were appointed.
When the Supreme Court resumed in September 1986, we were invited to Lagos. Abba Aji was the most senior. When we were sworn in, we were asked to go to the chief registrar to lead us into our chambers. Unfortunately, this gentleman from Ogun could not have a chamber. There were only three chambers instead of four. I told them that since there was no chamber for him, I would not go into my chambers, and since he was my senior by age, they should let him take over my chambers.
At that time, Justice Belgore was appointed into the court for about a year and I decided to go and chair his chambers for him. Originally, Justice Nasir, who was heading the Court of Appeal; Kawu from Ilorin; Balgore, also from Ilorin; myself from Kano, and Uwais from Zaria, although he is an indigene of Kano, plus Bello, were northerners in the Supreme Court. The other seven were from the South. There were 12 justices in the Supreme Court - five from the North and seven from the South. We were there until the report came that the Supreme Court should be moved to Abuja. Justice Bello was about to retire, so he decided not to move to Abuja, instead he arranged that sessions should be held in Abuja whenever there were appeals. To avoid conflicting decisions, whenever any panel was sitting in Abuja, Lagos would not sit. We continued like that until Bello retired in December 1973.
Eventually, in April 1974, the Supreme Court moved to Abuja. I remained in Abuja from 1974 up to 2002 when I retired on July 22. That was the year I became 70 years old, which was the compulsory retirement age for justices of the Supreme Court and the Court of Appeal, respectively.
Expectedly, an intellectual journey of this nature would be full of challenges, can you recall some of the challenges you faced?
Well, the challenges started here in Kano. When I was to move to the Court of Appeal, there were proposals that an indigene should be appointed a Chief Judge of Kano. My name was submitted, but just before the appointment, there was an election and the late Muhammadu Abubakar Rimi was elected governor of Kano State. And for one reason or another, Rimi felt he could not control me or I was too big for him, so he
said I should be advised to go to the Court of Appeal. I think that was the only challenge I can say I faced. So, I was appointed to the Court of Appeal and I went. Although he did not appoint me as chief judge, he consulted me on many issues relating to the judiciary.
Dahiru Musdapher was appointed the Chief Judge of Kano State. Apart from this, everything moved smoothly. I had no problem, both in the Court of Appeal and the Supreme Court. I was lucky to have people who led me in both courts, including Mamman Nasir, who was not only a seasoned lawyer but a great politician.
You delivered many judgements during your career; do you regret any of them?
I don’t think I regret any judgement I delivered. Probably, the only one, but I wouldn’t say I regret it, was when appeals for governorship elections terminated in the Court of Appeal and they had a time limit for them. The appeal from Benue-Plateau was before us in Kaduna and we were caught up by this time limit, so we told them that we couldn’t go on; and they appealed to the Supreme Court. The Supreme Court said the law that limited our time wasn’t constitutional; hence we ought to have gone ahead. But as I said, we did not interpret it that way and our decision was set aside. Apart from that, the only appeal I can remember is that of Shugaba Darman, who came from Maiduguri. It was said that he was not a Nigerian, but eventually, the matter came to the Court of Appeal and we decided that he was a Nigerian and had the right to participate in politics.
I can remember that Bello Maitama was the minister in charge of internal affairs under former President Shehu Shagari. I didn’t write a long judgement. I can remember the comment of one great lawyer who said I would have gone ahead to express what I wanted because I stopped where I ought not to stop. But as we delivered the judgement, that was the end of the matter.
Can you remember any judgement that was of special interest to you?
Well, most of the judgements that probably stretched me were those concerning Shari’ah, especially those from the Shari’ah Court of Appeal. There was one from Sokoto, which I delivered, and another one from Katsina; that was when I was in the Supreme Court. But the one from Sokoto was when I was in the Court of Appeal. The one from Katsina was about possession of land and so forth. The one in Sokoto, I think, concerned what we termed in Islam as Shifu’ah. Shifuah means a right to step in the shoes of somebody, such as when a neighbour wants to sell his house and he decides to put it in the market instead of selling it to another neighbour. Under the Islamic law he had a right to do that, but the Court of Appeal decided otherwise, so we had to set that judgement aside. I said the Court of Appeal was wrong because a right of Shifu’ah does not cover a neighbour, rather, it covers only a partner.
Few months ago, the issue of corruption in the judiciary became a subject of discussion in the country, what is your take on this ugly development?
No, I wouldn’t accept that the judiciary is a den of corrupt judges. There could be bad eggs in the system, but the judiciary is not as corrupt as people think. If you trace how some of the judges who are said to be corrupt got involved in these things, there must be some hands of practising lawyers. Some of them make efforts to approach judges with bribe, and so forth. If you are not strongminded and you fall into the trap, the same lawyers would say you are corrupt. So I will not accept that the judiciary is corrupt. Some of them, yes, but majority of them are not corrupt. Right from when I was a magistrate, to my days in the Supreme Court, honestly speaking, nobody even dared to give me anything in form of bribe.
How can corruption in the judiciary be addressed?
There is the need to always carry out a background study of people to be appointed to the bench. If the selection of judges is faulty from the beginning, then other things would go wrong. But if the necessary things are done at the right time, corruption will be reduced to its barest minimum or even eliminated.
Are you satisfied with the way the present government is fighting corruption in the country?
If you trace how some of the judges who are said to be corrupt got involved in these things, there must be some hands of practising lawyers. Some of them make efforts to approach judges with bribe, and so forth. If you are not strong-minded and you fall into the trap, the same lawyers would say you are corrupt. So I will not accept that the judiciary is corrupt. Some of them, yes, but majority of them are not corrupt
I think this government is doing its best, but corruption cannot go overnight. You can destroy a building in a day, but it takes some time to rebuild it. So these reforms will take some time before they start making impact on the lives of our people.
The Federal Government had set up an independent court for speedy trials of corrupt cases; what is your take on this?
Yes, there is the need for speedy trial of corruption cases because they are on the increase, but there is no need for a special judicial system. In my opinion, government should go with the present judges.
Several efforts to compel the Federal Government to start releasing funds directly to the judiciary under what is referred to as first line charge have failed. Why do you think the government is afraid to do that?
Honestly speaking, this is a political decision. First, whatever the judiciary gets comes from the budget of the Federal Government. With the present fight against corruption it will be difficult for the government to release enough or complete fund to the judiciary because the money is not there. However, the most ideal thing is to transfer the money meant for the judiciary to her after the budget.
The Chief Justice is the head of the judiciary, but he does not supervise the funding; rather, the secretary to the Judicial Council is the supervisor of the funds. Whatever he does he consults the chief justice. The chief justice is more concerned with the dispensation of justice - how to improve the quality of work and the quick delivery of judgements.
There is the argument on whether the state governor or chief judge should sign a
death warrant. Whose responsibility is it?
Well, the problem with governors is that they are politicians and some of the condemned people may be their friends or associates, or known to some of their people, so they may be reluctant to sign the death warrant. Also, governors are reluctant to sign death warrants because the decision to condemn these people was not taken during their time, but with the Chief Judge, it will be different. The Chief Judge is not a politician. Even if he has friends, when it comes to the question of executing his oath of office, he would not be reluctant to sign the death warrant. So, if you want to accelerate the cases of these condemned prisoners, give the Chief Justice the authority to sign.
Who is responsible for the delay in hearing cases in courts: judges or the police?
The cause is the number of cases. I can remember that when I was in the Court of Appeal, particularly in Abuja, cases in various High Courts were not as many as they are now. These days you see a judge handling more than 100 cases; what do you expect him to do? And these cases are increasing on a daily basis. Every day they are assigned new cases. And there is a provision in the constitution that when you complete a case, you must deliver judgement within three months.
As far as I know, this provision is still working. The National Judicial Council (NJC) is doing its best to see that judges comply with this. There is a committee set up to see that these provisions are strictly complied with. Lazy judges are either asked to sit up or moved from the judiciary. When I was a member of the NJC, some of them were retired while others were warned. I am sure that such measures are still there to see that judgements are delivered as and when due.
The other side of the delay is the attitude of lawyers. At times, during trials in courts they would deliberately bring unnecessary applications to delay proceedings, especially if they feel they have no case. But anybody going to court would see that both the judiciary and the Bar association are trying their best to eliminate some of these procedural issues that bring delay in the dispensation of justice.
But the problem is sometimes associated with the police who are responsible for preparing the First Information Report?
I wouldn’t say that. The delay is mostly not from the police alone, the Ministry of Justice also contributes. When I came back from England, before proceeding to the Nigerian Law School, I was attached to the minister of justice in Kano. We advised the police properly on how to go about investigations and prosecution of some of the minor cases, but bigger cases were prosecuted by the ministry, not the police.
Fifty-seven years after independence, our courts are still applying laws enacted by the colonial masters, is this not a setback to the judiciary, and by extension, the country?
Well, it is important to update laws. I can remember that some of the states established law reform commissions. I was appointed to head the one in Kano for two terms. But honestly, these reforms would come from various ministries and departments operating the laws. When I started here in Kano, we wrote to such ministries and departments, asking if there was any law they felt was outdated and should be reformed. We sat down and looked at the law, then advised the Ministry of Justice. But for the eight years I served, some of the laws were never implemented. When you sent them to the ministry, they would just put them into their files and dump them. They didn’t cooperate with the reforms, even at the federal level.