The Judiciary as the last Hope of the Common man (2): Legal and Media Perspectives
THE JUDGES
Hon. Justice W.S.N Onnoghen, former Chief Justice of Nigeria in a commentary once said that:
“The Nigerian Judiciary has been faced with a lot of challenges prominent among them is the delay in the administration of justice. To overcome some of these challenges responsible for the delay in the administration of justice, it behooves on each and every one of us to be disciplined, focused and innovative in the performance of our duties as Ministers in the temple of justice”.
The acts of some of our judicial personnel in all honesty also give room for some high level of concern even though the effect of these few acts are exaggerated and over blown in the public space. The failure of a few is being used as a standard for judging the overwhelming majority. For example:
i. The last issue of conflicting decisions of our courts pose a serious concern not just to the public but also to judicial precedents. It has the potency of making the law to be uncertain.
ii. The failure to follow precedent by some erring judicial officers is also uncalled for. The doctrine of judicial precedent is well rooted in our jurisprudence. It is a settled principle of judicial policy.
iii. The idea of sitting late is another issue. Some judges sit at 10am or 10:30am even though the official sitting time is 9am. I have been in court before 9am and the presiding judge came in at 11am and the next thing you hear is “Registrar, call the first case”.
iv. There is also lack of political will to enforce the application of the rules of procedure particularly as it concerns personal liability for counsel for cost for frivolous applications and unnecessary adjournments. Generally, delay tactics are employed by counsel when they perceive that they have a bad case or that they have no chance of wining the case.
Hon. Justice I.F Obiagwu of Abia State Federal High Court once said that “A bad lawyer can let a case drag on for several years, but a good lawyer can make it last even longer.” They you wonder, how do we deal with a situation of this nature where a case is made to last ad-infinitum? I believe that this answer lies with the presiding judges who must be active referees in their courts. One of the primary objectives of the 2004 Rules in Lagos State is “to eliminate time wasting practices which had hitherto be-labored be courts and seriously hindered efficient and speedy justice”. Our Judges can stop this through the enforcement of the provision for personal liability of lawyers for cost.
Order 53, Rule 14 headed Personal Liability of Legal Practitioners for cost provides that:
a. “subject to the following provision of this Rule, where in any proceedings cost are incurred improperly or without reasonable cause or by undue delay or any other misconduct or default, the judge may make an order against any legal practitioner who he considers to be responsible whether personally or through a servant or agent.
b. directing the legal practitioner to pay to his client cost which the client has been ordered to pay to other parties or
c. directing the legal practitioner to personally indemnify such other parties against cost payable by them.
You know as much as I do that no lawyer will like to suffer this kind of punishment. For Instance, hear this life example. Sometimes ago, a case came up for hearing before Hon. Justice Adesuyi Olateru Olagbegi. After appearances of counsel, the following conversation took place:
Court to the Defendant’s counsel: “Counsel this suit is listed for continuation of trial today please call your witness.”
Defense counsel: “My Lord, my witness are in court but I am feeling too well; I am just in court out of respect for this court.”
Plaintiffs’ counsel: “The defendants are not serious. This is their usual tactics. No medical certificate has been tendered. Besides, I shall be asking for very substantial cost.
Defense Counsel: “If it is them (the plaintiff) I will not ask for cost. How can they require a medical certificate from a colleague? My lord, if they insist on cost, I will manage to go on.
Plaintiff’s counsel: “We insist”
According to His Lordship, because of the instance of the plaintiff’s counsel on cost which may not be substantial to the defense but may also be ordered to be paid personally by the Defense counsel, the case proceeded to the trial. The court took the two witnesses for the defense. The defense closed their case and the suit was adjourned for address. All in one goal.
This a typical example of how frivolous and vexatious adjournments that we experience in our courts can be effectively dealt with by presiding judges and justices. Our judges are urged to be masters in their courts which is what they are. The time has come to stop undue indulgence for unnecessary adjournments.
It was Charles De Gaule that said “nothing great will ever be achieved without great men and great men only if they are determined to be”.
Let me talk briefly on the issues of Judicial Corruption.
ALLEGATION OF JUDICIAL CORRUPTION
There is no way we can do justice to this topic without talking about allegation of corruption that virtually on the lips of some outstanding persons in this society. May I please say that the more these unproven allegations are banned on the streets the more the people lose confidence in the system. The more will people lose their trust and the more people will loose their hope. The general perception today is that the judiciary of Nigeria is corrupt. In 2019, the senate leader of the 8th Nation Assembly at a plenary session was quoted by Thisday Newspaper as saying that “ours is a society where people who have so much money buy judgements.”
Permit me to ask the question; is the judiciary of Nigeria corrupt or is it that some judges in the Nigerian judiciary are corrupt? While it is incontestable that some judges – and I dare to say that, there are very few in comparative terms. I wish to submit that very many judges and justices are not only honest and principled but are also incorruptible. This generalization therefore that the Nigerian Judiciary is corrupt is a capable of destroying the entire judicial system. It is a fallacy of generalization we need to do away with. Because a few Nigerian judges are corrupt is not a defense to say that the whole Nigerian Judges are corrupt. For the avoidance of doubt, this is not to say that there are no bad eggs in the system. Like you probably will find in some other professions, but the point must be vigorously made that the few bad eggs are given the institution a very bad name to which even innocent ones in the system have become helpless victims. Efforts must be made always and sustainably too to locate the corrupt ones in the system and show them the way out.
Please recognize the stigmatization as a corrupt judiciary is one of the important challenges facing our administration of justice today in Nigeria. The time has come when we must all rise up to refute this perception. Please remember that the perception can become reality and even more dangerous than reality when perception attempts to change the reality. Purification will lead to sanitization and cleansing while stigmatization and bastardization will lead to destruction. The truth about the judiciary of this country is that it continues to live up to its historic and constitutional responsibilities.
Let me also seize the privilege to, most respectfully urge the National Judicial Council to be more proactive in looking at complains and petitions against judges. A good number of which experience has shown are frivolous. Most recently, the council at its 107th meeting held in this November considered 30 petitions following investigation by its committees. The council dismissed 22 out of the 30. Furthermore, the council sacked 2 Heads of court and suspended 2 other judges. It is noteworthy that the National Judicial Council is ready and willing to sanction erring judicial officers while not sacrificing its duty to protect them against unfounded allegations.
Now how do we make the judiciary better to guarantee without any doubt whatsoever and howsoever the trust and confidence of the people? How do we consolidate its position as the last hope of the common man? Today determines tomorrow. What you sow today, you will reap tomorrow. Nothing ventured, nothing achieved. Indeed, the fundamental truism is that you prepare for tomorrow today. The whole essence of this lecture I believe is how to make the judiciary better? I have the following propositions, a good number of which I have made at some other for a.
SUGGESTION FOR A BETTER AND INDEPENDENT JUDICIARY
ADEQUATE FUNDING
A critical look at budgetary allocation in comparative terms with allocation to other sectors will demonstrate total lack of priority attention to justice sector. I have had cause to do a comparative analysis of this before in the course for preparing for a lecture of this nature. In the course of that study, I found out that in 2011 the budgetary allocation to the judiciary was 85 Billion 2012 was 75 Billion, 2013 was 67 Billion. Fast track to 2017, it was 100 Billion 2018 = 110 Billion, 2022 = 120 Billion and 2023 – 150 Billion.
Before we start jubilating over the increase, let us compare those increases with allocation to other sectors. In 2022, while the judiciary was 120 Billion, Defense was 2.4 Trillion. Infrastructure was 1.45 Trillion. Social Development and Poverty Eradication was 863 Billion. For 2023, while judiciary was 150 Billion, Defense was 1 Trillion, 192 Billion. The National Assembly was 169 Billion. The allocation was grossly inadequate to run an effective and efficient judicial system. How about the salaries of our judges? Are they commensurate with the high office they occupy? Are they commensurate with the volume of work that they do?
A situation where you allocate 150 Billion for the Judiciary and 863 Billion for social development and poverty eradication is indefensible. A public commentator once said that politics is a process and policies are the products. Nothing exemplifies the link between politics and policies than the power of the politicians in government to allocate the resources of the State.
You can see how power is effectively demonstrated against the judiciary. It shows the politicians rate the justice sector. Go to some states of the Federation, the court buildings are dilapidated. Some have no functional generators. Where they have one, there is no fund to run it. Yet we say we are running a constitutional democracy where the Rule of Law must always prevail. They did not only allocate inadequate fund for the judiciary. They even ensured that the only cases treated with urgency and reasonable dispatch are the political cases.
I submit that political cases are not more important than other cases including commercial cases and are all require speedy dispensation. Commercial activities and business disputes which sometimes involve foreign investors are not less important. A clarion call is therefore being made for proper and adequate funding of the judiciary in order to serve the Nation better.
INTERLOCUTORY APPEALS
It is common knowledge that more than 50% of the appeals to the court of appeal and the supreme court are based on challenge to jurisdiction of the court of first instance.
I have made the suggestion elsewhere and let me make it again that we need to bring into the issue of interlocutory appeals. There is nothing new for instance in the Law on jurisdiction of our courts. There is nothing new for instance in the Law on jurisdiction of our courts. The issue of jurisdiction has been made a veritable tool of delay in our judicial system What is obtainable in election petition can be made to apply to civil proceedings whereby applications filed are taken as rulings reserved till judgement. Through this, interlocutory appeals can be subsumed into substantive appeal upon the determination of the merits of the case.
Today in our civil jurisprudence, immediately the defense counsel obtains court processes, his first concern is to bring an application to challenge the competence of the suit and or the jurisdiction of the court. As soon rulings are delivered, he appeals to the supreme court. Meanwhile, the hearing of the substantive case has been stalled through an order for stay of proceeding. The damage this process is doing to the hope and aspirations of the court users particularly those who have urgent cases is better imagined. Today in Nigeria, simple debt recovery case can last 12 years because of the journey from the high court to the appeal court, from the appeal court to the supreme court, and when the application fails, they will now journey back to the pick of the High court proceedings where they left it years back.
I have also discovered that issues of jurisdiction arise more in relation to subject matter jurisdiction between the High Courts of the state and the Federal High Curt in spite of the clear provision of Section 251 of the Constitution.
It is my proposal that the various State High Courts laws can be amended to make a provision for transfer of cases that nay be wrongly instituted at the State High Court instead of the Federal High Court. My inspiration is derived from the provisions of the Federal High Court Act which provides inter alia that “No cause or matter shall be struck out by the court merely on the ground that such cause or matter was taken In the court instead of the High Court of a state or of the Federal Capital Territory Abuja. And the judge of the court before whom such cause or matter is brought may cause such course or matter to be transferred to the appropriate High Court of a State.” I believe that this will put an end to very many interlocutory appeals in our courts.
A CHANGE OF ATTITUDE
i. Expeditious hearing of cases
Like I stated earlier in this paper, the advocates must begin to change their attitude for the better and become more professional. Rather than erecting road blocks and obstacles to speedy determination of disputes, let us err on the side of professionalism to conduct our cases in a more professional and expeditious manner. There must be an end to the endless preliminary objections occasioning endless rulings. The abuse and misuse of application for stay of further proceedings pending appeal must stop. The Legal Practitioner must abide by the rules of professional ethics and be able to remail in the fold of men and women of the noble profession.
ii. Frivolous petitions against Judges
The writing of the frivolous for transfer of cases from one judge to another even without any credible or legally justifiable reasons other than to cause delay must be stopped. The time has also come for us as counsel to discharge our duty to advise clients against hopeless cases and appeals. The authorities are clear to the point and this has been stated earlier in this paper that when the chances of an appeal succeeding are remote, it behooves on counsel in the case to advise his client on the uselessness of pursuing a protracted appeal. The same goes for the institution of worthless cases. A counsel must do this to save the time of court and that of the parties.
iii. Late Sitting
I think we also need to address the issue of sitting late. Mornings shows the day. A situation where a court does not sit until 10am or 11amis not the best.
iv. Fearless application of the Rules of Court
Finally on this point, I will advocate for a fearless application of the Rules of Court including in particular, the rule relating to personal liability of counsel for court. It will curb a lot of excesses of counsel that are looking for on frivolous excuse or the other because they failed to prepare for their case.
This leads me to significant and crucial proposal which I also consider will most definitely promote speedy administration of justice, enhance people’s trust and confidence and generally promote the Rule of Law and this is what I call federalization of the judiciary in Nigeria.
FEDERALIZATION OF THE JUDICIARY
I have argued in favour of a federalized judicial system as we have elsewhere, including the United States of America at different For a including on National television and Newspaper publications. A practitioner of the present system will no doubt accept the fact that the structure contained in the Constitution of the Federal Republic of Nigeria 1999 (as amended) constitute a serious impediment to speedy justice. It is a cardinal principle of law that justice delayed is justice denied. Hon. Justice Akinola Aguda once said that “the pursuit incredible slow process of judicial administration is frightening and oppressing. The poor feel the weight of the oppression far more than the rich. A judicial system which can permit a simple case to last for several years cannot be said to be running smoothly. Whatever happens at the end of such an aberration can hardly be said to be justice.”
It is my proposition that the structure of the Federal High Court, Federal Court of Appeal and Federal Supreme Court should be duplicated at the State level. In other words, already existing in the states are the High Courts. Appeal should lie from the state High Courts to the Court of Appeal of the States and from there to the Supreme Court of the State. While the Federal Courts will corn itself to matters on the Executive Legislative list in the Constitution which are numerous in any event, the State High Courts, the Courts of Appeal of the State and the Supreme Courts of the State will Preoccupy itself with matters on the Concurrent and Residual Legislative list.
At a time, we used to have the Court of Appeal of Western Nigeria. At the period referred to the western region, there was appeal from the states high court to western court of appeal and all through to the judicial committee of the privy council. Very significant authorities like Macfoy vs. United Africa Company Ltd emanated from this system.
In keeping with all the principles of federalism, the states I submit are entitled to have a full compliment of the three arms of Government that is the Executive, Legislature, and the Judiciary also having a full structure of High Courts, Courts of Appeal and the Supreme Court of the State.
I recall that the Constitutional Conference of 2014 made some recommendation including the creation of “Constitutional Courts, Anti-corruption Courts and the creation of States Court of Appeal with the provision that the State Court of Appeal shall be a terminal court for the state on state matters and that appeals shall lie to the Supreme Courts on matters involving weighty constitutional issues, civil liberties and matters of overriding public interest”.
This leads me to my last point, The Nigerian Bar Association.
NIGERIAN BAR ASSOCIATION
Hon. Justice Campton in the case of R vs. O. Connel had this to say “this court in which we sit is a temple of justice and the Advocates at the Bar as well as Judges on the Bench are equally Ministers in that temple. The object of all equally should be the attainment of Justice. Laborious, perplexed and doubtful in its issue that pursuit often proves but we are all Judges, Advocates and Attorneys together concerned in this search of truth. The pursuit is a noble one and those honoured who are the instruments engaged in it”
In the case of Corporative and Commerce Bank Nig, Plc vs. Ogochukwu Okpala & Anor, the court of appeal per Achike JCA stated that Counsel as an officer of the court should demonstrably qua counsel assist the court in reaching a reasonable decision on any matter before the court particularly where the procedure adopted by the trial court runs counter to well established principles.
Similarly, in the case of Sokoto State Government & Ors vs. Kamdex Nig. Ltd the Supreme Court had this to say “I or one may ask, does the Learned Counsel for the Respondent as a member of the Legal Profession and who is also a Minister in the temple of justice in defense of his integrity have the moral and professional conscience not to support something pr an act that is an antithesis of justice? It will not cost him anything including his fees I believe to advise his clients”. In this case the respondent’s counsel argument in opposition of the appeal was considered by the Supreme Court as totally wrong coming from a man of integrity belonging to a noble profession.
The Nigerian Bar Association has dutifully published the Roles of Professional Conduct for Legal Practitioner 2023. This is commendable. However, publishing the rule is not enough. Much more important is the effective use of the rules. The audacity with which some of us now misuse or abuse the rules of practice is clearly unacceptable. Some lawyers wake up all in a circulated attempt to delay and procrastinate the hearing of a case and for one flimsy excuse or the other, they write petitions against judges with a view to transfer cases from one court to the other through the Office of the Chief Judge. Please get me right, there may be genuine cases where the demand of professionalism and impartiality will warrant letter of transfer but most of the letters are written for flimsy excuses that should be sanctionable.
I heard what I have never heard or witnessed before some three weeks ago, when a particular Judge of the Federal High Court who was faced with such a letter was moved to tears in the open court. The judge who was said to have been visibly moved lifted the case file in open court and made a solemn oath before God stating that “if I have had any communications or dealings with the respondents in this case, let God judge me and my family forever. But if it is true that the practitioner has made overtures to me, directly and indirectly, all of which I declined, may God judge the petitioner and his Lawyers forever”. As the writer noted, this case has brought to light the serious challenges facing the Legal Profession in Nigeria.
The Nigeria Bar Association must become proactive to ensure that the erring members of the Profession are sanctioned and properly too. Furthermore, the NBA must rise up and defend the judiciary with a strong determination to defend its independence and impartiality. We were told in the days of old that the judiciary cannot defend itself.
I believe I have said all that is needed to be said in this very important topic.
CONCLUSION
The Judiciary is an institution that has no alternative. The only alternative to it is anarchy and that nobody wants. But when it gets to a point that people believe that they no longer get justice either because of the cumbersome system and structure, the attitude of the practicing Lawyers and Judges themselves, lack of impartiality and long delay, anarchy will follow. The former President of the United States of America Thomas Jefferson once said “Men are powerless to secure the future. Institutions alone fix the destiny of Nations.”
Your Excellencies, the Hon. Attorney General of the Federation and Minister of Justice, Distinguished colleagues, Ladies and Gentlemen, may I conclude by saying that an efficient and effective administration of justice that we can all be proud of and that investors both local and foreign, national and international can have confidence in, rely and trust is indispensable to the Nation’s progress and advancement. The Media as well as the Practitioners of law including of course the politicians and other sectors and interest of the society owe it a duty to advance its cause. This we cannot achieve in the face of sustained blackmail of the judicial officers or bastardization of the institution itself.
Our tomorrow lies in our today just as our today determines tomorrow. What we sow today, we reap tomorrow. Tomorrow simply means the day after today. It could also mean looking into the future. What we do today or say today has a lot to do in determining our tomorrow. So do good today so that tomorrow can be better and worth looking up to.
Thank you very much for listening. God bless you.
Dele Adesina SAN FCI Arb.
Life Member, Distinguished Body of Benchers.
Former Pro-Chancellor and Chairman Governing Council
Ekiti State University, Ado Ekiti.
Principal Partner, Dele Adesina Legal Practitioners.
