Almost a year after interviewing this distinguished jurist, Funke Aboyade again sought him out at his Ibadan Green Acres residence, this time, in an effort to learn more about the man, the legend, Kayode Eso. In this frank encounter, he went down memory lane and lacing his story occasionally with anecdotes, spoke about events and people that shaped and influenced him. In his own words, here is the story of his life.
One of those who, despite personal lapses, had a profound influence on the young Kayode Eso was the principal of his Secondary School, Ilesa Grammar School. 'Reverend N.O. A. Lahanmi had a problem. He drank. But he was a good Principal. Like when Grant was brought before Lincoln and they said, "Grant drinks". Lincoln said, "but he wins the battles!" The same thing with Reverend Lahanmi. He must have had his own problems - probably domestic. We were too young of course, to find out exactly what it was. He would be really soaked, but then, he knew what he was doing all along. He was very diligent, very observant and he believed in justice. That was what drew me to him. The justice of a matter, however drunk he was, never, never escaped him!
'Lahanmi was exceedingly hard working, not withstanding his failing. And he had the interest of the students at heart.
'I regarded him as one of the best Mathematicians in the School. He was so good. He would come out and work out the problems. Actually, we use to play a lot of tricks on him!
'A friend of mine and I were the best in Algebra. We would have worked the knotty problems at home. Lahanmi will go to the board and work out the problems. He will get stuck and we'll say, "Sir, that is wrong!" But he never got annoyed. There was an occasion, we said it three times and then he said, "Okay, I'll come back".
Another teacher would have got annoyed and flogged us! He came back and got it right and said, "who are those boys who said I was wrong?" The two of us got up and he said, "very good! I was wrong. Now I am right, am I not?" And we said, "Yes sir!
These were the little things that drew me to Lahanmi. Justice, hard work and the love of children.
Eso, it seems, got bored easily and was restless as a young man.
'When I was younger, I was very petulant and restless. As a matter of fact, my wife still believes I am restless! I am a restless person by nature. I am easily bored except you can catch my interest. If anything doesn't arrest my interest, it doesn't interest me at all. When we got out of School, we were invited to so many interviews and examinations. When they called us for the examination in Audit I said 'oh, this is it. It will be very good" They set very stiff exams. I did very well and they employed me. But after about two or three weeks, it was routine. Finding fault with others. I've always liked to find the faults in others! But then, it was routine. I felt I didn't have to have all my skills and this education I had before I could this. It was wasting my time! So I resigned after three months.
'Then, I become a Sanitary Inspector because an uncle of mine was one and I used to spend my holidays with him and I thought it was an active life. I got bored and resigned! It was routine - going about, looking for the faults of others in their environment!'
Considering that's what drew him there in the first place, telling people off, how come he got bored?
'Yes, exactly. I love telling people off! That's another fault in me. It is in me actually. But before you can tell people off, you must be able to really find that fault in the person you are telling off. You just don't go tell people off as a bluff.
'I loved telling off because I believed I had known more than they know. I could not suffer fools easily. It's one of the things still in me'.
Next, he went to teach.
'I enjoyed teaching because I saw the advert. They wanted a single teacher who could teach English, Literature, Latin and Yoruba. I said, " I fit into this". I was the only one for the interview! There was not a single one to compete the interview. So I got the job. But I was bored after some time, though I enjoyed the Literature and Latin part of it. It was getting towards the time I would go and study my law. So, I really sustained my interest in teaching until I went away.
Would this restlessness account for why he quit his job in the Foreign Service after only three days?
'Oh yes! I always damn the consequence! I loved to be in the Foreign office. It was the vanity part of it. Very vainglorious, dress well and all what not! I got there and I saw it was certainly not anything that could attract me to seeing big people off, looking after their luggage, their passport and listening to journalists asking stupid questions and I couldn't answer! I said, "This is not me". On the third day I didn't go. I sent in my letter of resignation. I sent in a month's salary in lieu.
'Law actually captured me. In the Ministry of Justice, there were a lot of varied challenges for me'.
The young Kayode initially had wanted to study Literature, then agriculture, dropped the idea of medicine because he couldn't stand the sight of blood, before deciding on law.
'That is part of my restlessness. I found it difficult to actually arrive at what I wanted. Maybe because I was too young to take a decision. I said to my father, "I would have loved to be a lawyer, but the place is glutted. Too many lawyers around!"
'So he said, 'En eh! Look at me, there are many traders around. But I am doing well and I have enough money to train you. There is always room at the top for the best".
He didn't stop there. He said, "the only place where you could find room at any time is the very top".
For Eso, 'if you are the type of person who would strive to get to the top, you have no problem. There will always be room for you. That is one thing that has guided me all my life and I have not regretted it. I have told my children several times. I have told law students several times.
'Another thing my father told me which stuck with me, because we used to have sessions in the evenings, talking about life. "Do what you believe to be right. Damn the consequence!" I asked him, "suppose they kill me?" He said, "I as your father I will die, will you not also die some day?". I asked him, "suppose what I believe to be right is actually found later on to be wrong?" He said, "That is not your headache. As at that time you believe it to be right, do it! But damn the consequence, because the consequence may be grave".
'That is also with me. It is one of the things that guide my life. I always do what I believe to be right. And it matters not to me what follows. That is why they say, "Oh he is fearless!" The only person who knows me with regard to that, apart from my wife, is Dr. Festus Ajayi, SAN. When I was trying Wole Soyinka, they said to him, "the man is fearless." He said, "They don't really know the man. He just goes there to do what he feels is right, he couldn't care less!" That is me. All my life.
After his initial zeal participating in the country's Nationalist movement, particularly the Zikist movement, what turned him off politics?
'I had a lot of zeal. But my father also told me, "don't go along with the crowd without finding out what they are doing. You must make your own judgment." In 1941, there was a riot in Ilesha. I saw lots of crowds just moving about, destroying things and I followed them. We went to one of the Chiefs' houses. They were stoning the cars and I started to stone cars. My father got me out and said, "What do you think they are doing"? I said, "I don't know, I just saw them". He said, "never you go along with the crowd! You must find out what they are doing and you must make your own judgment. If, having found out, you do anything wrong, don't let it worry you".
'In 1944, I came out school. I started work in 1945, I joined the Zikist movement and I hated colour discrimination completely. I also hate anybody who cheats the other. I do not like you looking down on anybody. I was not physically strong to engage in fisticuffs, but I always maneuvered myself to let them know that I resented what they were doing. I would fight shy of getting into fisticuffs because I might be beaten and I didn't like to be beaten. I knew that if I entered into any physical fray, I might be the worse for it, so, I always tried my best to avoid it.
Then the Bristol Hotel incident happened
As Eso recalled, 'the Colonial Office sent two important officials to Nigeria and they had to stay in Bristol. At that time it was run by a Greek. Only white people were admitted as lodgers. The Colonial Office sent Ivor Cummings and Mr. kith. Kith was white. Cummings, a West Indian, black. When they got to Bristol Hotel - all arrangements had been made in England - the Hotel admitted Kith and was wondering who the other black thing was! So Ivan Cummings was not admitted.
'The West African Pilot got hold of this. They blew it up the following day in the newspapers and then there was a physical attack on Bristol hotel. Workers were being led by some politicians. These politicians largely belonged to the most popular party of the day, the NCNC. Zik was in charge of the West African Pilot and whatever he said was law to us. He wrote a fiery editorial in the West African Pilot.
'The following morning, some of us got unto our bicycles and went and joined the melee, people throwing stones, and these politicians directing us as to where to fling our weapons. Suddenly, the Superintendent of Police came in with his men and what happened worried me. Still worries me. The very man who were in charge of the melee, who was directing the whole affair, turned against us and said, "you stop, I've been warning you! Stop!" He turned to the Superintendent of Police and said, "I've been stopping them!" The Superintendent of Police started to thank him.
'My friend, G. B. Akinyede, still alive, and I got hold of our bicycles and rode off. And I remembered clearly what my father told me, "Do not join the crowd. Never you join the crowd".
'That was the turning point in my life, before I do anything I must have investigated and believed in it'.
Eso had a very chastening experience upon his arrival in England when he was trying to decide between University College, London and Trinity College, Dublin. Evidently, the cocky, young man who arrived abroad left, a much humbler man years later!
'The man who arrived became sobered by what he saw' chuckled Eso in recollection. 'I thought there was nothing like me! I had the brains. I could do anything I liked. I was very clever. I led my classes throughout, no challenges. But the first sobering effect was brought by O. R. I. Marshall, the Dean of Law, whom I saw in England. He asked how old I was and I said 24. He said, "What have you been doing all your years?"
'I explained that I left school at the age of 19. He wondered how come I left school at the age of 19? How come? Was I not very bright? I said to myself, "What is wrong with this man? He is talking to the best!"
'That was the number one sobering effect on me. Same thing when I got to Dublin. My tutor wanted to know why I was coming in at the age of 24 to compete with young girls and young boys of 16 and 17, at the very best! That really deflated me. It didn't leave me for a long time.
For him, one of the greatest things that happened to me was going to Trinity College, Dublin. 'It gave me, a real, good background to what I call education. We had a choice of doing what we call taking the course in Moderatorship. This is an Honours course. But it's a special course. You could also take a general degree and still have Honours, 2nd class and so on. But in the Moderatorship it's specialised. In so far as law was concerned, it's called Legal Science.
'If you opt for a Moderatorship in Legal Science as some of us did, then you are faced with a tough time. Without the 'little go', you have to spend four years. The four years are not like the ordinary academic years. The exams are taken in October. In June, other universities and other courses in Trinity College will take their exams. But not so, with the Moderatorship. The exam will be set in October. Just about a week or two, before college resumes. Which means you have to study throughout, no holidays. You have to work throughout your summer holidays to be able to take the exam.
'You do junior fresh man, senior freshman, junior sophister. Then in your fourth year, when you take your senior sophister exam, you will be examined in all 13 subjects that you have taken from year one.
One of our lecturers who came from Oxford, a young fellow, who came to teach us Jurisprudence said, "I wish you luck in this your exam! I have never known anything like this. I do not know how I would have fared had this been my lot when I was in Oxford!"
'Well, we asked for it! You could easily have taken your B.A. In Trinity College, you have to have your B.A. before you can have another degree. The B.A. is the first degree. Even in your Legal Science, the Moderatorship will be B.A. Moderatorship. You could now take the LL.B. The LL.B, to us, was a cheap exam.
'At the end of the second year, you would not be allowed to proceed to third year except you passed an exam called 'little go' which consisted of, compulsorily, English, Logic, Mathematics. In my own case, I took Mechanics. Then you could have a choice in either Latin or modern Language. There were five subjects in all that you have to take. If you did not pass what you call the 'little go' however brilliant you may be, you could not proceed to the third year.
'There were so many students who were really very good, including Nigerians. I know a Nigerian who came in and then went back to England at the end of the second year. He is now a lawyer in Ibadan here. There was another Nigerian, a real orator. He came from the East. Brilliant, but he couldn't pass the 'little go'! He never made it. He left Trinity College without a degree.
'So, that was what we went through. Very difficult then. We cursed it! But it really groomed us up. You got interested in reading so many things. I flirted with a lot of writers in literature on my own. You will be examined, they called it viva voce. So, there's no question of your pretending or your spying as they do nowadays! You'll be examined man to man by the examiner. In Mechanics, the man gave me a sheet and said, "Look at this, write down the answers". I said, "oh, I have to work it out". He said, "I will fail you if you don't gave me the answers now!" So I had to.
'Interestingly, now' he added with a tinge of regret, 'they've gone the way of the other universities! You have credit every year for whatever you pass.
'But speaking seriously, the intensity of what we went through the Trinity College, for those of us who sat for the Moderatorship, has helped me throughout during my court. When I do my research I enjoy it. I don't feel tired doing any research'.
Explaining how the Yoruba concept of Omoluabi has guided him throughout his life and career, Eso recalled that the school motto at Ilesa Grammar School was first changed from the Greek andrizeste to play the man. And later, to e huwa omo luabi.
'That has been my motto throughout life. To me, e huwa omoluabi is a completely different thing from 'play the man'. Omoluabi goes into all ramifications of what you do. You cannot spell it out. You cannot analyse it. You try as much as possible to be fair in what you do. That is trying to be omoluabi. You try not to hurt the other person. But when you hurt him, you know that it's because you are doing the right thing and the right is hurting him. That is still omoluabi! You do not cheat, however, tempted you are. That is being omoluabi. And you fear no foe. You fear nothing. That is being an omoluabi. You do not get obsessed with pride or whatever you have and lord it over others. You give generously, that is omoluabi. You find it more pleasant to give that to receive. That is very important in life. That is how I believe an omoluabi should behave.
'I have applied it in everything I have done, a lawyer, a judge, a master at work. Even people who worked with me at home. All my life's wrapped round e huwa omoluabi. Because you'll be cautioned any time you want to do something that hurts, when you are omoluabi. You'll know that well, what I am going to do will hurt him alright, but I cannot help it, I am helping a cause, a worthy cause.
'When they asked me to look into the issue of judges and we had to recommend that some should be dismissed, it did not bother me one second. All the hue and cry will not bother me and it did not matter whether you were related to me or not. I believe in principles, not principalities!'
Eso sees as unfortunate, a situation where the names of judicial nominees become public and even discussed in the media. But what about the argument by some who say this affords the public the opportunity of coming forward with any reason that feel the nominee should not be nominated to the Bench?
'Well, it is a very good argument to say that if it is discussed it might help the public to know before hand and object to the nominees. To me, that argument is theoretical. I have never seen it happen in practice, except once. Even that once, I knew about it after it had happened.
'That happened to my own appointment. I was informed and it is in that book (Kayode Eso The Making of a Judge) that when the question of an appointment to the High Court Bench in Western Nigeria was being broached, one particular name was brought up and the Chief Justice said no, that man was corrupt.
'It was not the public that told the Chief Justice that he was corrupt. It was his reputation. So, the Chief Justice would not appoint that person. I understand that much later on, that was how my name came to be brought up by the Chief Justice himself.
'Having said that, the appointment to the High Court Bench is one of the greatest honours that anybody could have in life. It should not be a post that you lobby for. You've got to deserve that post. I do not think it is necessary for a name to be debated before it's known to be unfit. A person who will be appointed a judge should have acquired a reputation that he is honest, incorruptible and is of great learning. It's not a question of asking people. No! If he hasn't got that reputation, he hasn't got it! The question of appointing him should never arise.
'I can assure you that if the authorities wish to know whether a person has a reputation that would qualify him for an appointment or not, we've already given the recommendation in the Kayode Eso Panel. We recommended the setting up of a constitutional body - the Judicial Performance Commission. It should not be an arm of the Judicial Institute at all. It should be a Commission by itself. There should not be a single serving judge on it. It should consist of highly placed judges who had passed through and have got their reputation. I can assure you that the public knows the reputation of each and everyone of us that has left the Bench.
'A Public officer has no private life. No judge who has retired today can come out and say, "I am honest" if he is not honest. So it is possible to assemble a body of these people who would be the Ombudsman of the Judiciary. That, to me, is the best way, it may not be the only way to have the best on the judicial Bench. It may not be perfect - nothing is perfect - but it will go a long way'.
He recalled that when he was appointed to the Bench, he did not know that he was even being considered at all. In fact, he only recently discovered that all along, the then Solicitor-General and his very good friend, Dr. Ajayi knew. 'I did not know that he knew until last year when he was interviewed by the authors of this book. He never breathed a word to me about it. We were the closest of friends and we still are'.
Known for his strong views that judges who are afraid of being dismissed for doing the right thing are not really worthy of their positions, what does Eso make of the trend these days of reporting judges to the National Judicial Commission for wrong judgments they've given rather than go on appeal. Would he blame judges if there's now some trepidation in delivering certain kinds of judgments?
'There's more to it than what you have just said. It isn't a question of delivering "wrong judgments" that they are being investigated for. It is because of the reputation they have garnered for themselves, after persistent warnings.
'Let's take the issue of ex parte orders. For years now, at least 10 years before I left the Bench - I left the Bench 13 years ago - there have been warnings about giving these ex parte orders frivolously. Bello CJN, spoke powerfully against it. We believed that most of the judges doing it were corrupt. I know of a judge who when I was doing my investigations, prided himself in being very busy. He said, "last month, I did 30 cases". 28 of them were ex parte! We said he should be removed!
'Nothing stops a judge from giving a wrong judgment honestly. Nobody will penalise a judge for doing that. If a judge hears the two sides for instance, and then that judge is wrong, you go on appeal. But when a judge does not hear the other side and he forecloses that other side so that he can give judgment to just one side. What stops a judge before whom a matter is brought ex parte, except the heavens will fall? What is the hurry? You put the other man on notice! Or, if the heavens will fall, I'll give you this Order for 24 or 48 hours. Notice to the other side.
'Nobody in his right senses would penalise a judge for that. But that is not what's going on!' he declared passionately.
'Another thing is going on right now. You go before a court on a criminal charge. You go before another court and stop that court! That is what they are trying now to do instead of the ex parte. What they're trying to do is to set one house against the other! Except we stop it, except it is looked into, it will boomerang again! It will be a system of bringing in the ex parte system through the back door. There was a judge that stopped a convention going on, ex parte! Why?
'There was the one that stopped a whole convocation in Ife! People had been invited from all over the world! The convocation was going on, only for the Vice-Chancellor to receive orders of the court, "stop this or you are in trouble!" They had to stop it, because of the complaints of a young girl who said she was being molested by one of the lecturers who failed her. Ex parte!
'Nothing happened to that judge. It is an example of the malaise that is going on. To me, the Chief Justice is doing the right thing by looking into all these. He has my support!
Eso has oft voiced the view that the Judiciary as the third arm of government is the most powerful. What if these powers fall into wrong hands?
'Lest it may, Shakespeare said, prevent' he replied philosophically. 'How do we prevent the powers from falling into wrong hands? Before I come to that, let me talk about the powers of the Judiciary vis a vis the other two arms.
'As far back as 1982 when we had some constitutional cases before us, I had taken the stand that of all the three arms, the most powerful was the Judiciary. When I first said this, I remember clearly the late Fani-Kakode was one of the counsel. He said impossible! Well, to his credit, he later got round to congratulate me for taking that stand.
'It is true that the Judiciary has no weapon, is not physically strong, does not even produce the money, but it is the strongest. The Judiciary could stop the President from committing anything! It could stop the entire Legislature from doing what the Judiciary believes to be wrong. And once it believes it to be wrong, it believes it to be wrong!
'Let me take the example of the Supreme Court, because it is final. When I was in there, I enunciated the doctrine that the Supreme Court was a supercourt and the Justices were superjustices! Because the Executive could believe they could do whatever they liked, but the Judiciary could stop them.
'Even during the military era, Lagos State Executive was stopped in Ojukwu v Lagos State. I wrote the lead judgment and I termed what they did, executive lawlessness. But they obeyed the Judiciary. At that time, they had surrounded Ojukwu's house and driven him out. We told them that it was executive lawless and that they should clear out!
'That is showing the strength of the Judiciary with the pen and the brain. But then, having said that, if you have that power you must be very careful not to misuse it, otherwise we'll have judicial lawlessness too!
'How do you curb judicial lawlessness? If you have the correct material on the Bench, if you appoint a judge who is doing well, who is learned, bold and willing do the right thing unto death.
'A judge must stand by what he does unto death. This, I have been promoting since 1974. It's in one of my lectures to Magistrates. To stand by what you do unto death. Later on, I modified it and said, unto dismissal!
'If you have judges who are ready to do the right thing unto death and dismissal it will not fall into the wrong hands. It is where you have the kabiyesi judges who would genuflect and kow tow for love of money or power or position, that the power falls into wrong hands.
'Look at the Supreme Court these two years - the series of cases they've been dealing with. Constitutional matters. I feel very proud, I must confess to you, of the way they've been dealing - not ruthlessly, but very strongly and firmly - with what has been going on.
'There've been a lot of very important matters politically and economically, and even socially. But they've dealt with them, and expeditiously too. They have my commendation.
'If a judge is not doing well, send him packing, sack him! I do not believe that they should allow them to retire. I believe they should dismiss them. A judge that is very bad should not be allowed to retire because we tax payers pay for his retirement. It will be a salutary effect on the others coming behind him.
Since the 1985 case of Olaniyan v University of Lagos, in which Eso lamented the lack of independence of our universities it seems nothing much has changed.
'During the Olaniyan case, we discovered and we had the doctrine of Contract with Statutory Flavour. That was where I enunciated that you had contracts with statutory flavour. Statutes set up the universities, but the Universities started to act without following the statutes. They were just acting like Master and servant cases. The question of autonomy is one that for a very long time, had been thorny.
'You have wrong appointments into the University Councils. How would they have autonomy? When you have people who go there to look for contracts! Then, industrial unrest and unstable calendars.
'One university academic phoned me yesterday from one of the universities. He said, 'please Sir, those of you who have the ears of the President should tell him to use the big stick! We want to work. ASUU would not permit us to work". There should be a system by which those who do not want to work should go to other universities. Even they themselves see through themselves!
'Incessant industrial unrest, irrelevant curriculum, poor governance, poor living conditions, cultism, development implications, crisis in the education sector itself. Standard of teachers in some places is very low - professors who would not profess!
'Then the perpetual issue of he who pays the piper dictates the tune. If the government pays 100%, naturally the government starts to dictate what they should do. The time has come when these universities should look for ways and means of funding themselves to some extent, so they can have respect. Then, you can talk about university autonomy. For seven months, the universities have closed. If the universities have closed for seven months, what kind of autonomy are you talking about? Autonomy to stay away forever? Our Degrees are not respected even in this country, not to talk of other countries!
'It is a complex thing. It isn't a question of blaming the government only - I blame the government you know. If the government wants to control, let them pay 100%! Those who want to teach should go there. It is time that we have private universities.
Eso advocates against the death penalty, saying it will do more damage than good. We had a healthy debate about it.
He explained, 'My view about death penalty, my objection to death penalty is it is final. I fear anything that is terminal because I know mistakes could be made. I know that I've made mistakes even in my judgments. I didn't think deeply enough. Whereas, at that time I believed in what I did. Anybody, any mortal, can make mistakes.
'Just one case of mistake out of a million will make me revolt against death penalty! There are ways of punishing people. I know on the other side of the coin that some people are so wicked. Look at these pedophiles. They steal these little children, defile and kill them. It is true what they've done is beyond contemplation and anybody who's a parent will revolt against that. But killing them doesn't solve the problem.
'Fortunately, I never spent many years at the trial court before I want to the Court of Appeal. When I went back as Chief Judge, I was there for only 18 months and I went to the Supreme Court. In all my 25 years on the Bench, only three and half years were as trial judge. I was very, very careful whenever any murder case came before me. I tried not to make any mistake. I bent over backwards against convicting for murder. Why? Because I didn't believe in death penalty. I knew that once I sentenced them, I was obliged to sentence them to death. I would not deliberately allow them to go, but if there was the slightest hitch that maybe it's something else, I would go for that.
Having met his wife, a trained nurse, 52 years ago, what was the secret to their very warm, successful and happy relationship? 'Give and take. Mostly on her side! Actually she told me that I am her only patient. She wards off stress for me. It's not easy life for husband and wife, but there must be give and take. She has been wonderful. I thank God that she is my wife'.
First published in THISDAY LAW, November 16, 2004... exactly 8 years to the day that the most Honourable Justice Kayode Eso passed away...