• How to fix Judiciary, by Justice Adefope-Okojie
Justice Oludotun Adefope-Okojie bowed out of the Bench last Thursday as a Justice of the Court of Appeal after clocking 70, and a 47-year legal career, including 27 on the Bench. Adefope-Okojie was honoured by her brother justices, judges, Senior Advocates, Attorneys-General, Ogun State Governor Dapo Abiodun, family and friends at a valedictory session by the appellate court. The ‘activist-jurist’ dissected the problems affecting the Judiciary, their impact on the economy and proferred solutions. ROBERT EGBE was there.
Becoming a Judge
My appointment to the Bench was by happenstance. On my visit to Lagos in 1995, for the burial of our mother, Mrs. Dorothy Adefope, the then Attorney-General of Lagos State, Toyin Ayeni (nee Akerele), came to pay a condolence call. Stating that I was the type of person they required in the High Court of Lagos State, wondering at my continued stay so far away from home. she invited me to join the High Court Bench of Lagos State. Armed with recommendations from judges of the Plateau State High Court and of the High Court of Lagos State, I was appointed a Judge of the High Court by the Lagos State Judicial Service Commission under the headship of Hon. Justice Rosaline Omotosho, Acting Chief Judge of Lagos State, and sworn in as a Judge of the High Court of Lagos State in 1996 by Colonel Olagunsoye Oyinlola, the then Military Governor of Lagos State. This fulfilled the yearning of my mother for me to return to Lagos and be appointed as a High Court Judge.
My trajectory on the Bench would, no doubt have been different, if I had heeded the call in 2003 of the highly revered Hon. Justice Kayode Eso JSC, my sister’s father-in-law, to ascend to the Court of Appeal. To his great disappointment, I declined, telling him that only one of my children was at the time in University abroad. Moving from one division to another, as one is wont in the Court of Appeal, would entail the disruption of the education of my children, in view of my reluctance to put them in the boarding house. Though this decision stultified my upward movement to the Apex Court, as I was a late entrant to the Court of Appeal, I have had no regrets about this decision, when I look at my children.
Bench must resist injustice of technical justice
My passion, both at the Bar and on the Bench has always been to right injustice and correct, as much as possible, the ills in society. It has also been to protect the individual against oppression and the coercive might of the government or any authority. For this reason, it is a pain in my heart when I see a deserving litigant turned away from the seat of justice for any reason or on any technicality. One such technicality is the dismissal of suits, on the ground that the originating process was signed in the name of the firm. The pain of this decision is that a case that was tried on the merits through a tortuous length of time in the lower courts, with no objections raised, can be summarily thrown out on appeal on the ground that, even though it was signed in the name of the firm, the signature was not identifiable as a lawyer on the Roll of Legal Practitioners. Thus, a lethargic Counsel can sleep through the courts and wake up decades later in the appellate courts and have his opponent’s case thrown out, without as much as a consideration of the merits of the case, merely on this ground, couched under the issue of jurisdictional incompetence.
I have raised this concern in private and public and challenged some of my respected brothers in the Apex Court, serving and retired, including a former Chief Justice of Nigeria, complaining of the injustice of this stance. Most of us, in our days in practice, signed documents in the names of our firms. This practice is prevalent in other countries as well. It is not my desire to attempt to denigrate their Lordships’ respected positions but to plead that decisions such as these, which have elevated technicality over merit, be eschewed. It only breeds injustice and amounts to a judicial ambush.
The current trend in the strata of the courts for the elevation of technicalities over merit has been decried in earlier decisions of the courts, where courts are enjoined to ensure justice and hear cases on their merits rather than relying on form or being swayed by technicality, which they held would lead to injustice. I refer to cases such as Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 257 Para H per Nweza JSC; Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR Part 408 Page 1 at 30 Para A per Okoro JSC. Indeed, it has been held by the courts that where there is a wrong, there must be a remedy given by the courts, even if it means creating one where none existed. See Bello v A/G Oyo State (1986) 5 NWLR Part 45, Page 828 NEPA v Auwal 2023J6NWLR1 at 34 Para G-H per Augie JSC. A litigant should thus not be allowed to triumph on reasons only of technical victory. I pray that there should be a change in our courts, where judgments are given or cases lost merely on technical grounds, without recourse to the justice of the matter.
Pace of justice delivery in total paralysis
I cannot end my address, without expressing my pains and that of the general public on the pace of justice delivery in the country. If the truth be told, our pace of justice delivery is in total paralysis. We can no longer hide our heads in the sand, like an ostrich, whose hind parts are exposed. It is not acceptable that a case averagely takes more than five years to conclude at trial, more than three years in the Court of Appeal, and averagely about 12 years in the Supreme Court, giving a conservative figure.
Functional court system will boost foreign investment
A country that seeks foreign investment must get its court system functional, accelerated and receptive to the needs of the people, both domestic and international. No nation wants to invest in a country where judicial disputes take forever to conclude or at all. I thus make the following suggestions:
Courts must encourage arbitration
As most international companies, including domestic ones, have arbitration clauses in their contracts, in order to avoid the legal system and determine disputes expeditiously, the courts must encourage arbitration, rather than consider it a challenge to their authority. All cases and appeals in respect of arbitrations should be put on the fast-track list for speedy resolution. The Arbitration machinery established in most courts, including the apex court, must be made fully functional. Our judges will be surprised at the number of litigants who will opt for the resolution of their conflicts outside the judicial process. There is no point in winning an appeal only to find that the substratum of the appeal is no longer in existence. A pyrrhic victory! Justice delayed, it has been said, is Justice denied! How many litigants died even before their appeals were heard? Unless the judicial system is fast-tracked and arbitration encouraged, this country will never be considered an arbitration hub, thereby losing very much-needed foreign revenue. Companies will also be wary of entering into contracts with the Nigerian Government or Nigerian Companies for fear of the sluggish judicial system.
Automation of courts essential
All courts, including Magistrate Courts, must be fully automated, with functional Court Recording Machines, to allow for speedy justice delivery. It is not a luxury but an absolute necessity.
What to do with judges about to retire
Trial court judges who have less than two years to retire must not be assigned new cases. They should finish all the cases on their docket, rather than leave cases part heard, to be commenced de novo.
Any case that is not concluded before the retirement, death, or elevation of the trial Judge must not be made to start de novo, except if the witness did not conclude evidence and was not cross-examined. Our Evidence Act should be amended to take account of this. The reason behind starting a case de novo is for the new judge to be able to watch the demeanour of the witness. However, rules in existence in most Magistrate and High Courts in the various states which have advocated the filing of written depositions, have rendered this requirement unnecessary, more particularly as the courts have ruled that it is no longer acceptable for the judge to merely state that he believes the witness. The judgment must depend on the hard facts before the court. In any event, when a case has been in the courts a long time, how much of the witnesses’ demeanour does one remember? A desperate situation, as we have in this country, requires desperate solutions.
Not every case should reach appellate courts
As a matter of urgency, cases that go to the Appellate Courts must be severely curtailed. Almost every case goes to the Appeal Court and the Supreme Court. This should not be! There is no reason why motions for injunctions, stay of proceedings, landlord and tenant should go beyond the High Courts, Land, and Chieftaincy cases are local to their areas. They should terminate in the Court of Appeal with jurisdiction over the territory in question. Appeals in matrimonial proceedings should also not proceed beyond the Court of Appeal. The NBA is charged, in conjunction with the Bench, to determine this issue expeditiously, with a view to working with the National Assembly for amendment of the laws to this effect.
Governship election petitions should terminate at Appeal Court
It is not acceptable that election matters which constitute only about 10 per cent of the total cases filed, should consume almost the entire time and energy of the judiciary, leaving other cases stultified by reason of the inordinate pre-occupation with election cases, to the detriment of other matters of the Courts which are of more importance. There is also no reason why appeals in respect of governorship elections should terminate in the Supreme Court. Other cases have only two levels of adjudication, the trial Tribunal and the Court of Appeal. With regard to the Presidential election, the Court of Appeal is the trial Tribunal, with an appeal therefrom to the Supreme Court. It is, therefore, strange that it is only in governorship elections that there are three levels of adjudication. This constitutes an onerous burden on the Supreme Court and diverts its attention from other important matters before it. Maybe the recommendation for the establishment of special Courts, outside the existing Courts, for the resolution of election disputes, should be speedily considered.
Public perception of Judiciary and need for introspection
I cannot conclude this address without adverting to the pleas that are expressed every day by the generality of the public “begging” the judiciary to be just, to be truthful, and to save the country from collapse. My question is whether the judiciary needs to be begged or cajoled? What is it that qualifies any person to bear that exalted name “Honourable Justice? Is it not for it to administer justice without fear or favour? Is that not why the image of lady justice shows her with a blindfold on her eyes? Unfortunately, it has been severely vilified, with the Apex Court so denigrated and called by a social commentator as a rotten gaggle of useless, purchasable judicial bandits”. How did the judiciary get to this level? Why is the whole country on edge for fear of what the public regards as unpredictable judicial pronouncements? There must be a rethink and a hard reset. If the people we have sworn to defend have lost confidence, there is a problem that must be addressed.
Judiciary must be insulated from politics, call Executive to order
The judiciary is the last hope of this country and must not allow itself to be influenced by any consideration other than to do justice in a matter. It must live up to its duty to protect the people and to deliver justice to the deserving in doing this, it must be insulated from politics and must, where necessary, be bold enough to call the executive to order.
I restate an injunction I expressed in the judgment in the case of Nnamdi Kanu Federal Republic of Nigeria Appeal No V in CA/ARY/CR/625/2022 delivered on 13th October 2022, in which I was privileged to write the leading judgment that:
“The courts must never shy away from calling the executive to order when they resort to acts of “executive lawlessness”. The duty of the courts is to maintain a balance between ensuring that law and order is obeyed and the protection of the individual from oppressive actions by the executive.
I stand by this position. No authority must be allowed to go against its own domestic laws and international laws to perpetrate any act against its citizens. Time would not allow me to mention the boldness and forthrightness of our forbears on the Bench who stood up against the most horrendous and fearsome decrees and regimes in this country, to defend the rights of the people; Eso JSC in Garba v Federal Civil Service Commission (1988) 1 NWL Part 71 Page 449; Governor of Lagos State v Ojukwu (1985) 1 NWLR Part 1 Page 621, Ubani v. Director, SSS (1999) 11 NV/LR Part 625 Page 129 at 149 Para A-C; 147 Para A-C per Oguntade JCA (as he then was). Our judges must rise and be bold and save the country from disintegration and of might over right.
We should always bear in mind the injunction from the Holy Book in St Matthews Gospel Chapter 10v 28 that we must not fear those who kill the body but cannot kill the soul but rather fear HIM who can destroy both soul and body in hell,
I do commend my learned brothers in all levels of the courts, who are unseen, holding forth the word of truth. Surely there is a reward for you. I thank this country for the opportunity of serving it.
