How to Fix Nigeria: The Judiciary
By Wole Olanipekun
Sunday, September 28, 2008
It is incredible and inconceivable that 48 years after independence from our so called colonial masters, we are still trying to find out ways and means of fixing our nation in every sphere imaginable, be it politics, religion, business, sports, education, commerce, transportation etc. It is within this atmosphere of making suggestions for the fixation of Nigeria that the highly respected editors of the magazine have created a sub-theme on ‘how to fix the Judiciary.’ This subject pre-supposes that like the other arms of government, to wit, the Executive and the Legislature which have not been properly fixed, our Judiciary also is in dire need of being legally, politically, socially and righteously fixed to meet the challenges of our times and which said challenges are daunting, intimidating, enlarging and assuming multi-dimensional proportions on daily, if not on hourly basis.
The point must be made straight away that the Nigerian Judiciary can boast of having produced and supplied and is still supplying some of the finest crops of judicial officers within the Commonwealth countries which operate and administer the popular Common Law. When people like us got initiated into the profession in 1976, judicial officers were seen as demi-gods and taken as representatives of God on earth. This is how it should be because when there are disputations within any group of people, whether in the churches, mosques, schools, universities, business or even among couples and friends, what would readily cross their minds would be to take the disputations to the Court of Justice for adjudication. In essence, judges should be seen as people within the Legal Profession who possess the extra-ordinary character, culture, trait, patience, intelligence, knowledge, dynamism and virtues to adjudicate honestly and impartially among contending and disputing parties. It is, therefore, not a surprise that Section 6(6) of the 1999 Constitution solely and squarely vests judicial powers and authority in the superior Courts created by the Constitution. Before independence and through to the post independence era, judges in Nigeria were never accused of corruption, whether rightly or wrongly. Indeed, corruption or any type of vice which was predominant in other arms of Government and/or within the general public was seen as an abomination and anathema within the Judicial circle, whether at the Customary/Native Court, Magistrate/High Court and the Supreme Court. One fine example will suffice for this purpose and that was the case of R vs Egwuatu 6 WACA 79 whereat, a Court interpreter at the Local Authority Court in the province of Onitsha was charged with and convicted for official corruption contrary to Section 98(1) of the Criminal Code in that he did corruptly receive for himself one bottle of gin from one Belo Amadi as a reward for showing favour to the said Belo Amadi in taking him before the Local Government Authority Panel at Enugu. I have zeroed on this case deliberately to bring to the fore that as far back as the 1930s, a Native Court official was charged to Court for corruptly receiving a bottle of gin.
Alas, things have changed and nowadays, a lot of editorial and other opinions are written constantly, criticising what are perceived as the shortcomings of our Judiciary. As a Legal Practitioner, let me here repeat and reiterate the point I have made over and over, to the effect that among the three arms of government, the Nigerian Judiciary has performed best and has demonstrated more than any other arm of government patriotism to the Nigerian State. Let me state further that but for the timely intervention of the Nigerian Judiciary, our present democratic experiment would have collapsed and fallen like a pack of ill-arranged cards. Having said that, I must not be understood to be saying that the Nigerian Judiciary does not need any reform, correction, adjustment, restructuring and fine-tuning. This has become necessary and imperative if one considers the daunting fact that amongst the Judiciary in the Commonwealth in particular and those practising democracy in general, none is as burdened, encumbered, harassed, intimidated, inundated, over-stretched and out-stretched with political cases and disputations as the Nigerian Judiciary. If care is not taken and if the Nigerian Judiciary is not timely fixed up, we are fastly approaching the red light.
The Judiciary occupies a very important, significant and strategic position in every society. A good, independent, upright and incorruptible Judiciary precipitates happiness and orderliness of the society. It is the bastion of the world’s hope as it offers a formidable panacea to the plight, quandary and predicament of the down trodden masses. It is the desire of the hoi-polloi that justice must be done at all times and be seen to have been done. A bad or corrupt Judiciary on the other side is the bane of the society. No wonder that the erudite Niki Tobi JSC in Eriobuna vs Obiorah (1999) 8 NWLR (Pt.616) 622 at 630 declared that: "A Judge by the nature of his position and professional calling, is expected to be straight forward, upright, diligent, consistent and open in whatever he does in court and in other places of human endeavour that he happens to find himself. This is because his character as a Judge is public property. He is the cynosure of the entire adjudication in the court, and like Ceasar’s wife of Ancient Rome, he is expected to live above board and above suspicion, if the judicial process should not experience any reverse or suffer detriment. A judge should know that by the nature of his judicial functions, he is persistently and consistently on trial for any improper conduct immediately before, during and immediate after the trial of a case."
The indomitable Niki Tobi JSC is well groomed in both Common and Ecclesiastic Laws. Thus, his exposition as afore-quoted is not surprising. The said exposition tallies and rhymes with what God expects from Judges. At this stage, let us have a glimpse into some passages from the Holy Bible and the Holy Koran to buttress the point. In Exodus 18 : 21-22, Jethro, Moses’ father-in-law advised him to appoint Judges having the following characteristics in mind:
"Moreover, choose able men from all the people, such as fear God, men who are trustworthy and who hate a bribe and place such men over the people as rulers of thousands, of hundreds, of fifties and of tens. And let them judge the people at all times, every great matter they shall bring to you, but every small matter they shall decide themselves."
The same Holy Bible in Deuteronomy 16: 18-19 commands thus: "18. Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout the tribes and they shall judge the people with just judgment.
19. Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift; for a gift doth blind the eyes of the wise and pervert the words of the righteous."
In like manner, the Holy Koran states concerning justice in Chapter 4 : 58 that: "Allah commands you to hand back your trust to their rightful owner and to pass judgments upon men with fairness. Noble is that which Allah exhorts you. Allah is hearing and seeing"
In Chapter 5:8, the Koran goes further to direct as follows: "Be dutiful to Allah and bearers of just witness. Do not allow your hatred for other men to turn you away from justice. Deal justly; justice is nearer to true piety. Have fear of Allah; He is cognisant of what you do".
The teachings of Christianity and Islam to which I dare say most Nigerian Judges belong, enjoin a Judge to be upright, sober, calm and exuding rectitude and uprightness at all times. He is commanded by the Creator to shy away completely from bribery and impartiality. To the best of his ability, his proceedings must be speedy and fair. He must ensure equality of all litigants before him and neither should he be biased or prejudicial to anyone of them on any account whatsoever.
Philosophers from time immemorial have pontificated eloquently on the attributes and values of a judge and again, their theories are in tune with the injunctions of the Almighty God regarding the institution of the Judiciary qua the judex. Socrates, the world acclaimed ancient Greek Philosopher (See Plato’s Enthyphro-Apologies of Socrates of Crypto) posited that: "Four things belong to a Judge, to hear courteously, to answer wisely, to consider soberly and to decide impartially."
Justinian, another great Jurist and Roman Law giver reasoned that: "The ignorance of a Judge is the calamity of the innocent."
This is expressed in the Latin maxim: "ignorantia judicis est calamitas".
The influential Guardian Newspaper has as its motto "Conscience, Nurtured by Truth". I believe this is an adaptation of the immemorial pronouncement of the great Usman Dan Fodio who rightly exclaimed that:
"Conscience is an open wound, only truth can heal it."
St. Augustine ranked justice as a sine qua non to the very existence of humanity and societal order. In his Civitas Dei (City of God) written in 413 AD, he portrayed justice as an indispensable ingredient in the existence of any community or nation and declared that:
"Remove justice and what are kingdoms but gangs of criminals on a large scale".
One has fairly gone into the archives to bring out what justice entails because it is the very hallmark and bulwark of the existence of any nation and without it, what will result will bring chaos, brigandage, anarchy, commotion, imbroglio and undiluted state of anomie. In effect, the point being made is that while the Executive can be accused of corruption, ineptitude, nepotism, and the Legislature constantly faces the charges of tardiness, arrogance, laziness, degeneracy, etc, the Judiciary cannot and should not put itself in any position of being blamed or accused of such shortcomings or failings, since it is the only institution that will, at the end, apportion blames to either the Executive or the Legislature for any or all of their ills. A school of thought is of the opinion that the Judges are products of our society and, therefore, are bound to reflect some of the ills of the society in their attitudes, judgments and pronouncements. I beg to differ and, like Niki Tobi JSC, align myself with the school of thought that believes that Judges like Ceasar’s wife must be above board in every material particular. Having said this much, I also tenaciously hold to the view that we must help the Nigerian Judges and, using this prefix of this write up, in fixing up the Nigerian Judiciary.
Section 17 (1) (2) (e) of the 1999 Constitution provides thus:
"17 (1) The State social order is founded on ideals of social objectives: freedom, equality and justice.
(2) In furtherance of the social order
a…………….
b……………..
c………………
d………………
(e) the independence, impartiality and integrity of courts of law and easy accessibility thereto shall be secured and maintained."
Apart from the fact that of recent, rampart allegations of corruption have been made against some of our Judges, leading to the National Judicial Council taking the very commendable steps of dismissing, retiring, suspending, sanctioning and reprimanding some of them, other problems facing the Judiciary today include absence of real or actual Judicial independence, Judges still recording lengthy proceedings in long hands, lack of continuous education for our Judges, mode and manner of appointment which are not strictly based on competence, lack of institutional reforms, the slow pace of Judicial adjudication etc.
As a result of space limitation and the restriction placed on me by Newswatch Authorities regarding the length of this contribution, it would be impossible to treat each of the identified problems in fair details. Be that as it may, let me quickly suggest that for our Judiciary to meet the great challenges of our time, our Court of Appeal must be unburdened forthwith with the unenviable duty of adjudicating on election petition matters which invariably has now exposed the Court to biting criticisms and, at times, vicious attacks. The General Sani Abacha Administration promulgated the Constitutional Court Decree No 4 of 1998, as amended by the Constitutional Court Amendment Decree No 5 of 1998, creating a Constitutional Court, consisting of a President and not less than 20 other Justices and vesting it with the jurisdiction to the exclusion of any other Court relating to Constitutional matters. Section 8 thereof vests in the Constitutional Court the jurisdiction to the exclusion of any other Court on matters relating to Presidential Election Petitions, registration of political parties, intra-party disputes as well as membership of political parties. Section 10 vests in the Court the appellate jurisdiction arising from appeals from decisions of the Governorship and Legislative Houses Election Tribunals, as well as Local Government Election Tribunals and that the decisions of the Constitutional Court in such matters shall be final. It is rather unfortunate that General Sani Abacha has been given a wholesale condemnation by those who succeeded him, thus throwing away or discarding some of his actions which were good intentioned. The rejection or abandonment of the Constitutional Court idea and jettisoning of the Constitutional Court Decree have resulted in the nightmare faced by the Court of Appeal whose pitiable jurisdiction today covers these election matters and appeals and the consequences of this tardy situation are what we are all witnessing. These include the Court of Appeal even overruling itself in some cases against the age long doctrine of Stare decisis (See Jatau vs. Ahmed (2003) FWLR (Pt 151),1887 @1896, paras. D-E; ITPP Ltd v UBN(2006) All FWLR (Pt 324) 1789 @ 1802, paras E-G; UBA vs. Taan(2003) NWLR (Pt 287) 368 @ 378,parasA-B; John Andy Sons Ltd vs. NCRI (1997) 3 NWLR (Pt 491)1 @14,para B.; the delay in hearing appeals arising from election petition matters; the near jettisoning or abandonment of the normal appeals- Civil and Criminal that come to the Court of Appeal and which equally deserve urgent attention; exposing the Justices of the Court of Appeal to all manners and intrigues of politicians who are ready to employ the instrumentality of blackmail against them etc. Since there is a national quest for Constitutional amendment, it is suggested that the Constitutional Court Decree as promulgated by Gen. Abacha Administration be inserted into the Constitution with the necessary modifications and amendments. It should not be the place, province and jurisdiction of the Court of Appeal to handle intricate, volatile, explosive and delicate election petition and political matters. Strictly speaking, the Court of Appeal should not be saddled with any additional responsibility other than its normal and usual appellate jurisdiction, over civil and criminal matters coming from the High Courts.
Sections 231(1)(2) and 238(1) (2) of the 1999 Constitution provide for the appointment of the Justices of the Court of Appeal and the Supreme Court respectively. Respectively as well, the qualifications for such appointments are 12 and 15 years at the Bar. To my mind, if we are to fix the Appellate Courts in this country, the appointment should reflect the best crops of Lawyers, serving on the Bench, in active Legal Practice and the academia. Without any gainsaying, both the Court of Appeal and the Supreme Court must be prepared to accommodate contending views from all sections of the Legal Profession and which in turn will lead to cross fertilisation of the best of ideas. A situation whereby Judges of our Appellate Courts are appointed strictly from the Bench, while other areas of the profession are sidelined is not good for the country. The likes of the Elias, Nnamanis, Cokers, Ajegbos etc who were appointed to the Supreme Court right from the bar did the apex court a lot of pride and added immeasurable value to its integrity and decisions. In this wise, no Constitutional amendment is needed, but the modus operandis of appointment has to change. The Legal Profession is one and every Judge is first and foremost a Lawyer. It cannot be rightly defended that a Lawyer who has practised at the Inner Bar for more than ten years is not a good material for any of our Appellate Courts, including the Supreme Court. In like manner, any good, competent and identifiable High Court Judge should be encouraged to go the Supreme Court without passing through the Court of Appeal. The likes of the Esos, Obasekis, Oputas, Kawus, Bellos, Alexanders, Fatai Williams etc. did not go through any pupilage at the Court of Appeal, yet they stand, to date, amongst the very best Justices ever produced in the Commonwealth. As for the High Court, the Governors at the State level should stop interfering with appointment of Judges and allow the Judicial Service Commission of each State a free hand to recommend, interview and appoint the best of materials to the High Court Bench. While Nigeria cannot afford the luxury of insisting, like Great Britain that it is only those who have taken the Silk that should be appointed to the High Court Bench, the High Court should not constitute a floodgate for all manners of first comers.
Judicial independence is the complete liberty of individual Judges to hear and decide the cases that come before them free from interference of any kind. Its independence will be a cornerstone of the Nigerian Legal System. The principle will be upheld as a fundamental constitutional right. An independent Judiciary has long been recognised as the foundation upon which a true democracy rests because it allows Judges to make impartial decisions without fear of dire consequences. This is important because public trust in the Judiciary depends upon societal confidence in the impartiality of individual decisions.
On paper, the Nigerian Judiciary appears independent, but in actual practice, it is otherwise, particularly at the State High Courts’ level. Without any fear of contradiction, the Federal Judges are not known to be under any direct dictation as to how to deliver some judgments, as against what happens in some States. In the early days of the Nigerian Judiciary, even up to the 2nd Republic, Chief Judges of States would personally take up complex and constitutional matters involving their Governors and deliver judgments, not minding whose ox was gored. Alas, the story has changed nowadays and some Chief Judges are scared of taking cases involving their Governments and Governors and would rather prefer to assign those cases to newly appointed Judges. This is not fair to the system and we have to go back to the drawing board. It is also not part of the functions of the Chief Judges to identify themselves as part of the Executive members of their States and care must be taken by some of our Chief Judges not to donate the Judiciary as annexures/extensions to some Government Houses. There is no way a Judge can be impartial and objective in a democracy if he is tied to the apron string of the Executive.
For now, Section 251 of the 1999 Constitution gives the Federal High Court virtually an unlimited and omnibus jurisdiction on all matters and including those involving Federal Government and its agencies. This is in contra-distinction to Section 230 of the 1979 Constitution which restricted the jurisdiction of the Court to what was conferred on it by the original Federal High Court Act. We are gradually and systematically losing sight of the fact the Federal High Court was conceived as a Revenue Court and the Supreme Court succinctly curtailed its jurisdiction in the celebrated case of Bronik Ltd vs. Wema Bank Ltd (1983) 6 SC 158. A situation whereby a Constitution decrees and compels someone who wants to institute a proceeding against the Federal Government or any of its agencies to go to Federal High Court is bizarre, illogical, unfair and unreasonable. We are witnessing a gradual, if not a total emasculation of State High Courts which, by the present Constitutional arrangement are merely living in their past glory. The erstwhile jurisdiction conferred on State High Courts has now been constitutionally appropriated to the Federal High Court. It started with the promulgation of Decree 107 of 1993 by the Abacha Administration and unfortunately, the Abdulsalam Abubakar Administration which foisted the 1999 Constitution on us entrenched the provisions of Decree 107 into the Constitution. The only and decent way out is also to unburden the Federal High Court of the vast, but unusual and untraditional jurisdiction conferred on it in a Federal set up. We are witnessing today a mockery of criminal trials whereby a Federal High Court sitting in Kaduna will assume jurisdiction over criminal offences that were supposedly committed either in the South-West, South-East or South-South part(s) of the country. This is very abnormal and the break has to be applied immediately.
Nigeria remains the only known country practising participatory democracy where politics is played throughout the years and at all seasons, irrespective of whether elections have been held and concluded and notwithstanding the fact that new Executives and Legislatures have just been sworn in. In essence, politics dominates the Nigerian landscape and pollutes the air-space. The major and most thriving business in Nigeria today is politics and both politicians and their followers rightly or wrongly believe that they have an insurable interest in politics. It is, therefore, not surprising that to some, politics has become a "do or die" affair. By extension, election matters or petitions and appeals arising therefrom are attached the same prominence, vigour and "do or die" syndrom, like the elections themselves. In ordinary Civil and Criminal matters, appeals from the decisions of High Courts go to the Court of Appeal and, thereafter, to the Supreme Court. The word ‘ordinary’ has been advisedly and deliberately used because these cases are not as important (to a cross section of Nigerians) as the political cases. Their view point can be defended in the sense that the positions of the National Assembly, Legislators and Governors are not just important, but also fundamental to the very essence of our nascent democracy. Again, before the Abdul-Salam 1999 imposed Constitution, appeals on election matters relating to Legislative and Governorship Petitions ended up at the Supreme Court and that at the end of it all, the disputing parties got satisfaction, one way or the other. I dare say that some of the best judgments on election matters in this country and which today constitute the precedents in this area of our jurisprudence were those decided by the Supreme Court on Legislative and Governorship appeals between 1983/1984. These include Nwobodo vs. Onoh, Omoboriowo vs Ajasin, Ige vs. Olunloyo, Obih vs. Mbakwe, Ojukwu vs. Onwudiwe etc. See (1984) 1 SCNLR. One is at a loss as to why the Abdul-Salam Administration restricted appeals in election matters touching on Legislative and Governorship Elections to the Court of Appeal. The consequence of this absurd situation is what we are witnessing today – a situation whereby litigants do not feel satisfied with the decisions of the Court of Appeal which go against them, since they have no option of appealing to the apex Court and ventilating their grievances. In ordinary appeals to the Court of Appeal, three Judges of the Court of Appeal sit over the judgment of single Judge of a High Court. On a further appeal to the Supreme Court, five Justices of the Supreme Court sit over the appeal from the Court of Appeal. In other words, the number of Judges that sit at the Appellate Courts increases with the hierarchy of the Courts. Contrariwise, we have an unfair situation in our hands today whereby three Justices of the Court of Appeal will sit over a case decided by five eminent Justices of an Election Tribunal and one way or the other, affirm or set aside their decision, without any right of appeal to the Supreme Court. The situation is very abnormal and absurd and has bred a lot of disgruntled losers who have unfortunately and/or as a result of the fact that they have no further choice of appeal, taken to blackmailing the Judges or engage in petition writing. The Nigerian public and the press have also joined in the clarion call for the amendment of our Constitution to allow for appeals in these delicate but very important matters to the Supreme Court. If litigants are allowed the latitude to fully stretch themselves to the Supreme Court in these sensitive election matters, they will feel satisfied at the end of the day and more confidence will be restored in the judicial process.
Time and space have not allowed for justice to be done to this unique topic. Howbeit, kudos have to be given to the Nigeria Judiciary for so far salvaging our present democratic experimentation. But for the Judiciary, the impunity that accompanied the removal of Rasheed Ladoja, Joshua Dariye and Peter Obi as Governors by the last Civilian Administration should have gone unchecked and, by extension, many governors would have been sacked illegally and unconstitutionally by the said Administration. This same Judiciary which has constituted itself as the bedrock of our democracy should also be assisted to be properly fixed, not only as suggested in this paper, but also in several other areas which have been identified by this and other eminent Nigerian writers and Lawyers. In doing so, the Bar and Bench, in the words of the legendary Oputa JSC, must see and constitute themselves as inseparable "twin pillars" in the administration of justice, according to themselves mutual and reciprocal respect, without either feeling superior to the other. Pointedly made, neither the Bar nor Bench can operate without the other. The Nigerian Bar Association (NBA) has a great role to play in this wise and henceforth, a Judges’ Forum should be established by the NBA, just like its American counterpart (ABA) and such forum should be given a pre-eminent role to play at the NBA Annual Conferences. Workshops and seminars for the Judiciary should be more constant and far reaching than what we have now and according to the suggestion of UNDOC Anti – Corruption Toolkit, such:
"Workshops and seminars for the Judiciary should be conducted to consider ethical issues and heighten vigilance by the Judiciary against all forms of corruption. A handbook for Judges, if not already in existence should be instituted. The book should contain practical information on all topics relevant to enhancing the integrity of the Judiciary"
In summary, the Judiciary represents an indispensable institution in any nation state, Nigeria inclusive. It is the anchor against oppression, repression and anarchy. The mighty and lowly look up to it for redress of wrongs done against them. Judges hold justice in trust for the Almighty God who is the ultimate and final arbiter. The sacredness of the duties and functions of judges demand the proper and timeous fixing of the judiciary for, in the words of Lord Francis Bacon, former Law Chancellor of England:
"if we do not maintain (fix) justice, justice will maintain (fix) us."
Wole Olanipekun, SAN, is principal partner, Wole Olanipekun & Co., Lagos.
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