When the presidential election petition process commenced in March 2023, Nigeria’s Supreme Court had a total of 13 Justices. The court had seen an increase in its membership by seven new Justices in November 2020, following the resolution of disputes stemming from the previous year’s presidential election. Since then, the court has experienced significant changes, with six Justices retiring and three others passing away. In fact, during the period since the commencement of the presidential election petition in March, one Justice of the Supreme Court passed away, while another retired just three days before the judgment of the Presidential Election Petition Tribunal (PEPT), reducing the total number of Justices to 11.
Additionally, the court’s second senior-most member, Musa Dattijo Muhammad, is scheduled to retire in the upcoming month of October, specifically on October 27. If an appeal arises from the judgment of the PEPT, the Supreme Court would nominally have 10 eligible Justices available to handle the case. This count is before considering any potential recusals, conflicts of interest, or health-related absences.
Election petitions have increasingly strained the judicial system and the well-being of judges since 1979. The pivotal case of 1979, which involved the contest between Shehu Shagari of the National Party of Nigeria (NPN) and Obafemi Awolowo of the Unity Party of Nigeria (UPN), ultimately reached the Supreme Court of Nigeria. The court’s judgment in this case was famously described as “a compromise between law and political expediency.” Atanda Fatayi-Williams, who served as the Chief Justice of Nigeria at the time, led the bench that made this consequential decision. However, the events leading up to this judgment had a lasting impact on Nigeria’s politics and institutions.
The critical phase of this story began on August 16, 1979, when the Federal Electoral Commission (FEDECO), under the leadership of Michael Ani, declared Alhaji Shagari as the winner of the elections, marking Nigeria’s return to civilian rule. However, three out of the five presidential candidates in the election contested the results, sparking a major election dispute. Obafemi Awolowo was one of the candidates who rejected the outcome.
The Electoral Act of 1979, which governed the election, foresaw the possibility of disputes and granted the Supreme Court the authority to resolve presidential election disputes. The panel responsible for hearing these disputes was to be led by the Chief Justice of Nigeria (CJN). Unfortunately, the incumbent CJN at the time, Sir Darnley Alexander, was set to retire on August 24, 1979, just eight days after the election results were announced and well before the Supreme Court was scheduled to hear the petition.
Three days before Chief Justice Darnley Alexander’s retirement, on August 21, 1979, the then-military Head of State, Olusegun Obasanjo, who was an army general, invited Atanda Fatayi-Williams, a Justice of the Supreme Court, to a meeting at Dodan Barracks in Lagos, the seat of power. During this meeting, Obasanjo unexpectedly offered Fatayi-Williams the position of CJN, succeeding Sir Darnley.
In his memoirs titled “Faces, Cases, and Places,” published in 1983, Fatayi-Williams mentioned that this offer took him completely by surprise, and he found himself at a loss for words, while Obasanjo seemed to enjoy his discomfiture.
However, some of Fatayi-Williams’ peers on the Supreme Court had reservations about this appointment. Fatayi-Williams was called to the Bar of the Middle Temple in London in 1948, a year after Chukwunweike Idigbe and three years after Dr. Egbert Udo Udoma, both of whom were his contemporaries on the Supreme Court. While Fatayi-Williams hailed from Lagos, Idigbe was from the then Mid-West, and Udo Udoma came from the then South Eastern State. Idigbe became a judge in 1961 and was appointed to the Supreme Court in 1964, although his service on the Supreme Court was disrupted by the Nigerian Civil War.
Udo Udoma, who also became a judge in 1961, had a diverse career as a lawyer, minority rights activist, campaigner, politician, and federal legislator before becoming a judge. In 1963, he became the Chief Justice of Uganda, with the understanding that he would return to a position on Nigeria’s Supreme Court after his tenure in Uganda. This transition occurred in 1968 when General Yakubu Gowon appointed him as a Justice of the Supreme Court. Atanda Fatayi-Williams joined the Supreme Court in 1969, where he held a junior position compared to Udo Udoma and, technically, to Idigbe as well.
In his own memoirs titled “The Eagle in Flight,” Udo Udoma recalled that when Chief Justice Adetokunbo Ademola retired in 1972, the Supreme Military Council considered five candidates for his replacement. These candidates included Professor Taslim Elias, who was then the Attorney-General of the Federation; John Idowu Conrad Taylor, who served as the Chief Justice of Lagos (as theoffice was known at that time); Dr. George Baptist Ayodola Coker, a Justice of the Supreme Court; Rotimi Frederik Alade Williams, a senior lawyer in private practice; and Udo Udoma himself. Notably, Fatayi-Williams was not among the candidates considered. In the end, the military preferred Taslim Elias, who had served them effectively as Attorney-General.