Category: Law

The judiciary has got a boost in its quest for financial autonomy.  Last May 26,  Justice Ahmed Mohammed of the Federal High Court, Abuja, granted the judiciary financial independence, removing it from the Executive. To lawyers, the judgment is a welcome development.  They said it should serve as a signpost for the abrogation of other practices considered inimical to the nation’s interest by the government and its agencies, writes Eric Ikhilae.

The coast is now clear for the judiciary to exercise its much-desired financial freedom. The May 26 judgment by Justice Ahmed Mohammed of the Federal High Court, Abuja, empowers it to control its finances without going cap-in-hand to the Executive.

In the past, the Judiciary was required to submit its annual budget (comprising capital and recurrent expenditures, including salaries, and allowances, among others ) to the Executive for inclusion in the Appropriation Bill.

Even when the funds approved by the National Assembly are paid into the Consolidated Revenue Fund (Federation Account) as required under Sections  81(3), 121(3) and 162(9) of the 1999 Constitution (as amended), the Executive does not release the funds at once to the Judiciary. Instead, it releases them in instalments, claiming paucity of funds.

The practice was a relic of the military era – where every decision of the government was centralised. The discriminatory budgetary trend affected the judiciary’s allocations, which kept dwindling while the budgets of the other arms grew yearly.

This sorry state of affairs made Chief Justice of Nigeria (CJN), Mariam Aloma Mukhtar, to raise the alarm over what she described as an attempt to incapacitate the Judiciary, at the start of the 2013/2014 legal year.

Justice Mukhtar noted that the Judiciary’s budget had steadily declined from N95 billion in 2010, to N85 billion in 2011, to N75 billion in 2012 and in 2013 to N67 billion. Other stakeholders in the sector had equally added their voices in calling for an enhanced funding of the Judiciary in view of its growing responsibilities.

It is against this backdrop, that many are delighted by Justice Mohammed’s verdict. The judge declared as unconstitutional, the practice where the Judiciary is required to submit its annual budget to the Executive for onward transfer as an item in the Executive’s Appropriation Bill to the National Assembly.

“This practice clearly offends the spirit and letters of the Constitution. The practice also undermines the financial independence of the judiciary in this country. For times without number, the estimates of salaries, allowances, remunerations and recurrent expenditures of the judiciary are being altered.  This alteration has always been at the detriment of effective and efficient administration of justice in this country.

“The presidential system of government brought by the Constitution, no doubt recognises cooperation and partnership among the three arms of government for peace, order and good governance in the country. But that does not mean that any arm should be dependent or subservient to the other, as is the practice with regards to the funding of the judicial arm of government.

“Another point worthy of mentioning is, if the National Assembly does not submit its budget estimates to the executive arm, why should the judiciary be made to do so? As the Executive arm is required by the Constitution to submit its budget estimates to the National Assembly for deliberations, so is the judicial arm accorded the ame right and independence to do so under Sections 81 and 84 of the Constitution.

“It is, therefore, beyond adventure to state that as the Constitution did not recognise the practice of the Judiciary submitting its annual budgetary estimates to the Executive arm, and the provisions of the Constitution are sacrosanct, then the court has the inherent power to arrest the apparent drift characterised by the clear and unconstitutional practice entrenched over the year,” Justice Mohammed held.

He proceeded to grant all the prayers as contained in the suit marked: FHC/ABJ/CS/63/2013 brought by Olisa Agbakoba (SAN) against the Attorney-General of the Federation (AGF), the National Judicial Council (NJC) and the National Assembly.

The latest judgment is an improvement on an earlier one by Justice Adeniyi Ademola (also of the Federal High Court, Abuja) in a suit by the Judicial Staff Union of Nigeria (JUSUN).

The judge declared as unlawful the practice whereby the Federal Government and the 36 states withhold budgetary allocations of the Judiciary only to release same in bits. He noted that the practice constituted a threat to the independence of the Judiciary.

Justice Ademola, who granted a perpetual injunction restraining the federal and state government from further withholding funds allocated to the Judiciary, declared that their failure to pay the fund standing to the credit of the Judiciary in the Federation/Consolidated Revenue Funds to the heads of courts was a violation of constitutional provisions. He ordered them to, henceforth, comply with Sections 81(3), 212(3) and 162(9).

Sections 81(3) provides: “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the State under Section 6 of this Constitution.

121(3) also states that: “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned.

162(9) equally states that: “Any amount standing to the credit of the Judiciary in the Federation Account shall be paid directly to the National Judicial Councils for disbursement to the heads of courts established for the Federation and the states under section 6 of this Constitution.”

Lawyers said it was wrong for other arms of the government to have subjected the Judiciary to such oppressive practice, forcing it to engage in a needles struggle to retrieve its right.

They said one of the major implications of the judgment by Justice Mohammed was that the Judiciary would no longer depend on the Executive in the execution of capital projects as funds for their execution will form part of the budget estimates to be submitted to the National Assembly at the beginning of each year by the NJC. They noted that the latest judgment remains the law until it is set aside by a superior court.

Sebastine Hon (SAN), Mike Ozekhome (SAN), Dr. Albert Chukwuma, and Ahuraka Isah observed that the position taken by Justice Mohammed was the law as provided in the Constitution. They said, henceforth, Judicial budget estimates should be submitted to the National Assembly by the NJC (at the Federal level) while the various states act in similar manner.

Hon noted that this practice, which the judgment has declared unlawful, is one of the several constitutional breaches carried out by other arms of government against the Judiciary. He queried the legitimacy of the Budget Office created by the Executive, to which all budgetary estimates are submitted for analysis.

Expressing the hope that these latest judgments will be respected, he observed that the Executive arm had, before now, refused to enforce several judgments of superior courts of record to the effect that the Judiciary be financially independent.

“There has been systemic reduction of the annual budget of the Judiciary. I must state straight away that with these breaches, administration of justice is almost grinding to a halt now! No nation, including even one run by the most brutal government, toys with its Judiciary the way things are in Nigeria now.

“Even though all the said breaches started occurring before this current administration took over power, they are nevertheless still being perpetrated, much to the danger of the survival of our democracy, the rule of law, transparency and due process.”

One of such fundamental breaches, he said, is the subversion of the country’s budgetary process, by centralising all budget collations, analysations and final preparation in the hands of an illegal contraption called the Budget Office of the Federation.

“Even though this office has been existing for several years now, it has handled many of our annual federal budgets; and even though it has a Director-General and staff who handle assumed ‘official’ duties with respect to the budgeting process, the office has not been established by any law. It is also not one of the bodies established by the Constitution.

“A visit to its website and inquiries from the Legal Department of the National Assembly and the office of the Clerk of the National Assembly will clearly show that this very important office has not been established by any law in force in Nigeria.

”It is a subversion of Section 81 of the Constitution, which requires the President to “cause to be prepared and laid before each chamber of the National Assembly” each financial year’s budget for the Federation of Nigeria.

“Even if the President claims he has delegated the preparation and collation of such budgets to the Budget Office of the Federation, this will not be correct for the following reasons: (a) the Budget Office of the Federation, which is not a natural human being but a supposed institution, is not established by any law in force in Nigeria, which in legal parlance means it is not a body known to law; (b) from its website, this body is independent of the Presidency and the Federal Ministry of Finance.  Since it claims ‘independence,’ it can only function lawfully or legally by the instrumentality of either a Federal statute or the Constitution.

“Another serious constitutional breach, this time, not just by the Presidency, but by all major players in our body polity, is the subversion of the offices of the Chief Justice of Nigeria and Chief Judges of the respective states. Call this subversion of the Judiciary.

“Under Nigeria’s constitutional democracy, there are three arms of government – the Legislature, the Executive and the Judiciary. Under the settled doctrine of separation of powers, these three arms are independent and equal in the eyes of the law. This can be seen from Sections 4, 5 and 6 of the Constitution, read together with Chapters V, VI and VII of the Constitution.

“However, major players in the Nigerian body polity rank the CJN and the respective State Chief Judges fifth in terms of official recognition and placement. This unconstitutional practice owes its origin to the National Order of Precedence of Public Officers and Other Persons Bill, 2008, which has not been signed into law till date! Even if signed into law, it will impinge upon the express provisions of the Constitution cited above,” he said.

Hon urged President Goodluck Jonathan and the National Assembly to urgently redress the issues, “to avoid a further slide to constitutional interregnum.”

Ozekhome said the practice in which the Judiciary sends its budget estimates through the Executive defeats the doctrine of Separation of Powers.

“If the Judiciary has to go cap in hand, to the Executive to say this is our budget, help us take it to the National Assembly. Does the National Assembly takes its budget to the Executive or the National Assembly? As a matter of fact, the National Assembly even increases its own allocation after it has been given to them.

“So, we should not make an arm of government a monstrosity, because it may devour its maker. The three arms of government are equal, coordinate and separate. The Judiciary is an arm on its own. So, it should take its budget, after listening to all its departments, straight to the National Assembly without going through the Executive,” he said.

Ozekhome argued that the abolition of the old practice will make the Judiciary more efficient, allowing it access to more funds to operate.  He said the current practice was responsible for the dwindling allocation to the Judiciary because the Executive tampers with the estimates submitted to it by the Judiciary before it gets to the Legislature, who also reduces it.

“That is why you now see the budget of the Judiciary, declining   annually rather than increasing. The budgets for the other arms of government are increasing, not even arithmetically, but geometrically, while the budget of the Judiciary has been decreasing arithmetically, and we cannot go on like that.

“So, the Executive has no business with the budget of the Judiciary as an arm of government. Under the Constitution,  the Judiciary can subject its budget to the approval of the National Assembly and all the heads of courts go before the Legislature to defend their budget before it is passed, not subjecting  the Judiciary’s budget to the Executive, who first waters it down, before passing it to the National Assembly,” Ozekhome said.

Chukwuma said the pronouncement by the court would have been unnecessary if the country appreciated the meaning of democracy and the doctrine of separation of power. He blamed the development on the long years of military rule in the country.  He noted that the military centralised every aspect of governance and ensured that it controlled all sectors.

He contended that where the Judiciary depended on the other arms, particularly for funding, it hardly functioned effectively. He said the freedom granted the Judiciary should encourage the government to ensure that other practices that are contrary to the provisions of the Constitution are reversed.

Ahuraka, who is the Media Aide to the CJN, said with the judgment, the Judiciary’s budgetary estimates for recurrent and capital expenditure, which were usually sent to the Executive would  now be processed by the NJC, which, in turn, will submit it to the National Assembly on behalf of the Judiciary.

For many, however, it is not yet uhuru. The Judiciary, they said,  still has to subject its annual budgetary estimations to the intrigues and politicking of the Legislature, which could lower it. There is also the challenge of the vicissitude of fluctuating national earnings, which could also impact on the quantum of what is allocated to this law interpreting arm of government.

This seeming financial freedom should not come as a ticket for profligacy. This is because it is a fact that judicial officers and other categories of court workers are not immune to acts of corruption and theft of public funds.

While many expect the development to result in efficiency in courts’ operations and enhanced commitment by the personnel, it is, however, incumbent on heads of courts to ensure judicious application of budgetary allocations as it will do the arm no good if a head of court is charged with embezzlement of public funds

Prof. Chidi Odinkalu is the Chairman of the National Human Rights Commission (NHRC). In this interview with JOHN AUSTIN UNACHUKWU, he speaks on the commission and the forthcoming Nigeria Bar Association (NBA) elections.

What is your greatest achievement  at NHRC?

Well, we were inaugurated on November 26, 2012, that’s about some 18 months ago. We’re in a country in which achievements are listed in terms of tangibles and how many buildings you’ve constructed or how many people you’ve given jobs in the public sector. Regrettably, I have not done any of these two. So, I guess that makes me a failure. I come from a tradition, however, in which achievements are in reckoned in intangibles.

How do you mean?

Given the challenges we face as a country, it’ll be in my view, unforgivable navel-gazing to begin to speak of “achievements” of the commission. Remember the book of Proverbs, 27:2: “Let another man praise thee and not thee, thyself.” That’s a part of the Bible that I subscribe to quite fully. I’m gratified generally that the commission’s moral, operational, and functional authority continue to be enhanced. There’ll be time to dwell on discrete areas of growth or achievement. I just don’t think that time is right here yet. A national human rights institution is not an opposition party; nor is it a public relations department for government nor a Salvation Army. The challenge of building the commission into a confident, independent, credible institution remains a present continuous challenge and right now, that is what we’re focused on.

What is your assessment of human rights situation in the country?

Clearly, the human rights situation in Nigeria is quite challenging. But these challenges are tied to our challenges of state’s capacity and of nation building. Nigeria is a vast country with vast challenges. At the moment, the biggest challenges are forging a nation out of our diversities and building institutions to guarantee equal stakeholding for all who claim Nigeria as theirs. That is not going to be solved in one stroke or in one generation. It’ll take time. Our institutions are struggling. Military rule destroyed or ruined most of them. The politicians have not made much of a dent in making them better.

Most of our politicians are interested in trying to profit from our differences rather than bridge them. The Police has been grossly under-funded and demotivated. That is part of our challenge of insecurity. The constitution says the primary responsibility of government is safety and security. But when you under-resource the police, you license impunity. That is perhaps our biggest national security and human rights’ challenge-impunity.

The husband, who beats his wife to pulp; the terrorist, who detonates an Improvised Electronic Device ( IED) in the market place; the senior public office holder, who steals the entire budget for public health in his state; the national oil company executive, who plunders money meant for the Federation Account and the Senior Advocate, who procures money to bribe a judge in an election petition – all of them calculate that they’ll go scot free and they probably will.

In such a country, the only guarantor of security is narrow identity and the only way to protect yourself is vigilantism, do it yourself.(DIY). That is why we have a very violent society. Many people think the situation in the north east is the only site of violence in Nigeria, it isn’t. The violence is everywhere, retail and wholesale. If we don’t build capable institutions we can’t make a dent on it.

Prof. Epiphany Azinge (SAN) just concluded his tenure as the Director-General of the Nigerian Institute of Advanced Legal Studies (NIALS). What is your appraisal of his tenure?

Public service is a revolving door. You put in your best, and you take a bow. I think posterity will be very kind to Prof Azinge. He’s injected tremendous energy and verve into the institute. Under him the institute has been quite prolific in many areas that it did not venture into before from public law to investment law to international criminal law. He deserves to be justly proud of what he’s accomplished at the Institute. Deji Adekunle who’s being designated to succeed him is exceedingly well equipped to continue to take the institute on the right path.

The Independent National Electoral Commission (INEC) has accredited observers for  Ekiti and Osun polls. Will that ensure election in those states?

The Ekiti and Osun elections are excellent opportunities for INEC and all other institutions looking to prepare for the 2015 elections  to test-run arrangements for 2015, admittedly on a small scale, but the opportunity must not be missed.

Accountability is essential for the credibility of our elections. Since 1979, we have failed to ensure accountability for those who rigged our elections. I’ll give you some examples: In 1983, the Babalakin Commission on  Federal Electoral Commission (FEDECO) reported a case of the old Oranmiyan North Constituency in what is now Osun State in which a FEDECO official, one Mr. Stephen Ajibade, rigged the numbers, manufacturing 214,500 votes in 1983 for a constituency that registered only 42, 216 voters four years earlier in 1979, an impossible growth of some 450 per cent in four years or a year on year growth of over 110 per cent. Nothing happened to him. In the 1997/98 senatorial elections in Abia Central Senatorial Zone, Ikwuano Local Government returned 44,000 votes out of a registered voting population of 39,000, that is a turn out of 112.8 per cent in an election in which the official  turn out was 25.1 per cent. To its credit, the then NECON suspended the returning officer involved, but he was reinstated by the Obasanjo administration. In one case in Anambra State in 2007 in which only 2089 voters were registered, INEC declared over 7226 votes, that is 345 per cent turn out and nothing happened to the officers who procured these numbers. Such impunity licenses election rigging.

What is your Commission doing about this?

That is why the National Human Rights Commission is calling attention to electoral accountability. As the Supreme Court noted in Rotimi Amaechi’s case, elections involve the exercise of a human right,  the right to participate in government. When there is impunity for violations of the right to participate, fair trial is also subverted. This is why in July this year we’re launching public hearings on electoral accountability.

What is your appraisal of the current leadership of the Nigerian Bar Association (NBA)?

At the personal level, I can say without equivocation that all elected Bar officers are my friends,  I like them. At the institutional level, I don’t think this NBA leadership has distinguished itself, sadly. At the National Executive Committee  (NEC)  meeting held in Ado-Ekiti, the Chief Judge of Ekiti State , Justice Ayodeji  S. Daramola, a distinguished member of my 1988 Call set, if I may say so,  said quite clearly that the NBA has lost its voice and credibility. That’s obvious.  The era in which  men and women of integrity like Alao Aka-Bashorun, Hairat Aderinsola Balogun, Yinka Fayokun, Gani Fawehinmi, Ebele Nwokoye, led the national Bar is long gone.

Why do you say so?

The NBA has also lost its moral and institutional authority and its goodwill with most Nigerians. We’re being perceived as part of the problem not part of the solution. Internally also, the Bar is no longer seen as an organisation that cares, nor is it any longer a deliberative body. Take for instance the current insurgency in northeast. The Nigerian Union of Teachers  (NUT) is a body that cannot rival the NBA in terms of resources. But the NUT has kept proper records and knows how many of its members have been killed by the insurgency. About  173 have been reportedly lost, so, NUT members believe their leadership cares. When it calls them out, they answer. Compare this with our NBA, any of our members have been killed and many more have had to flee the insurgency. But the NBA has kept no records of who we’ve lost, the circumstances in which we’ve lost them nor have we tried to honour any of them.

Leadership at the Bar has become Sole Administratorship. That sucks! We’re a body of lawyers for crying out loud, not a military organisation or a body of thugs. This is not personal. I like the NBA President at the personal level. But liking someone in a position of leadership also means telling them what they need to know not just feeding them with what they want to hear. Leadership is not a mutual admiration exercise. Sadly, my view is that the present leadership of the NBA has not risen to the standards that we’re entitled to expect of an independent and credible Bar.

You headed a committee on the professionalisation of the NBA secretariat. What were your  recommendations?

…Indeed, I did. And I worked with some terrific people, they included the former Publicity Secretary of the NBA,  Muritala Abdulrasheed. He was also the campaign manager of our current NBA President from Kaduna branch; Halima Aliyu of the Birnin-Kebbi branch, who is also a Director in the Kebbi State Ministry of Justice; Abigail Waya of the Lafia branch, who is a Permanent Secretary in Nassarawa State;  Idris Bawa, who is a Federal civil servant and member of the Abuja Bar.

Our secretary was Udo Jude Ilo, a former programme officer at the NBA Secretariat, member of the Abuja branch and current country director of the Open Society Foundations in Nigeria. I want to give you the flavour of the composition of our committee because it is important. I chaired the committee and belong to the Lagos branch and we came to this matter with an open mind. Our report ran into about 57 pages delivered with candour  to the NBA President and secretariat in January 2013. It is the only report in this administration that they did not lay before the NEC of the NBA

Why did they not lay it before the NEC ?

I don’t know why. About six months after our report was delivered, it was leaked. I don’t know by who or for what reasons. There is nothing too secret about what we found. I expected the leadership to have the conviction of its courage to lay the report before the NEC. I think it was an error on their part not to have done so. By the way, our report was also totally unanimous. The biggest issue for us was the fact that for an organisation that claims to be “promoting the Rule of Law” the NBA had a tradition of non-compliance in the most basic issues: taxation, pensions, safety, insurance, health insurance. The potential liabilities we estimated in these areas ran into tens of millions of naira.

Secondly, we also found that the organisation had become hugely under-optimised in terms of its revenue and membership potential. It was heavily and unwholesomely reliant on big  envelopes from  politically exposed persons.  Third, we found a Bar in which sex discrimination thrives to the point of being institutionalised and in which women continue to be seen largely as objects of gratification. We made clear recommendations for addressing this but many people continue to trivialise this. There were other issues we found and we were quite candid to our leadership about dealing with these and about how it could begin to do so.

How can NBA elections be improved?

It’s quite simple; a few steps will suffice. First, we should get out of the habit of trying to pre-determine the outcome of NBA’s leadership processes. We need a playing field that is not just level, but is manifestly seen to be so for all candidates. We’re all learned colleagues and friends at the Bar. Second, the NBA must make a public commitment to anti-money laundering measures. As part of this commitment, all candidates for the NBA elections must publicly and in writing pledge to both transparent campaign financing and to renounce money from politically exposed persons. A situation in which candidates for NBA positions, especially the Presidency, flood the process with money from dubious or politically crooked sources must be denounced and rooted out. It compromises the organisation beyond repair. Third, we need a credible and independent electoral management process not under the thumb of the outgoing NBA leadership. There is a creeping dynastification of leadership at the NBA-outgoing regimes choosing who succeeds them and why and how and imposing those on the organisation, that we need to remove. That’s part of why we’re where we are. In the end though, we must commit to universal sufferage at the Bar.

Lagos lawyer, Chief Frank Agbedo examines the effect of the new rules which encourage parties to frontload claims and counter claims.

The luxury of pleasing others, enjoyed alike by actors, singers, and lecturers, is shared by lawyers.”Judge J.w.Donovan.

An advocate is a person who pleads the cause of another in a court of law, while advocacy refers to the active espousal of peoples’ causes before constituted authorities. Advocacy has been described as an art without a school, except that of experience.

The origin of bar advocacy  as a critical component in the administration of justice dated back to the medieval times with the advent of modern civilisation which had propelled the establishment of courts of law as alternative to the erstwhile state of savagery where every man was law onto himself and only the fittest survived.

This paradigm shift had created the necessity for a kind of watch-dog to ensure that the rights of those who lay down their arsenal and turn to the law courts with their grievances for justice are fully protected in accordance with the law of the land.

The concept was, therefore, predicated upon the belief that since the ordinary citizen lacked the courage and requisite skill to navigate the labyrinth of a court trial, the intervention of an advocate-being a person skilled in the art of pleading the cause of others in a court of law, was vital to the realisation of the objectives for which the law courts were established.

The art of advocacy, characterised by sartorial elegance, rhetorical prowess and forensic eloquence, had always held great attraction and enchantment to litigants, lawyers and judges alike. But advocacy means much more than mere rhetoric. In the words of the late Oputa JSC, “Advocacy is more than mere oratory, it is more than sensational rhetoric. It has its art, its duties and its functions and its peculiar characteristics.”

Once upon a time, in Nigeria, a good number of people from all strata of society, regularly thronged the court rooms, located across the nation, to watch notable legal luminaries mesmerize themselves with legal fireworks, oratorical prowess and dazzling eloquence, while presenting their cases before the court, to the admiration and at times muted ovation of their clients and onlookers.

That was an era not only in Nigeria, but also in the British Commonwealth, when oratorical ability was seen and perceived as the trademark of brilliance and success at the Bar.

We had such great and legendary advocates who bestrode our legal firmament like the colossus. Recall such heavy weights in law, like Chief Rotimi Williams, fondly called, “Timi The Law” and noted for his legendary forensic eloquence; Chief Gani Fawehinmi, the fiery litigator and implacable fighter for human rights; Sir Clement Akpangbo; Chief Chike Chigbue; JIC Taylor; Sir Louis Mbanefo and Chief J.O.K A jayi,  all of blessed memory and many who are still alive and plying their trade, but in a new dimension.

Oftentimes, owing to the allure and public acclaim associated with advocacy and rhetorical prowess, the advocate usually deviates from his noble duty to render diligent, conscientious and efficient service not only to his client, but also to the court and the society in general, and embarks on needless pontification and excessive legalism thereby leading to inordinate delay in the conduct of proceedings and the slow pace in the dispensation of justice.

In the words of Nweze JCA, an eminent jurist, “Such was the landscape of litigation that the rules of court almost wore the toga of inviolability. In that setting, the temple of justice could be likened to abattoirs: where legal practitioners, employing the principal tools of their trade, namely, “the whirligig of technicalities” daily butchered substantial issues in their “fencing game in which parties engaged themselves in an exercise of outsmarting each other.”

The old rules of court had aided and abetted the unwholesome resort to this “whirligig of technicalities” by lawyers as judges by virtue of their strict role as ringside umpires only, were compelled to yield the fate of court proceedings to the whims and caprices of the parties and their counsel, who were at liberty to dictate the pace of the proceeding without judicial interference, causing serious impediment to trials.

Consequently, while admitting the pristine role of good advocacy to the attainment of even justice and the growth of our judicature, there became a necessity for a paradigm shift in advocacy to jettison those old stereotypes and idiosyncrasies of litigation counsel that were inimical to justice, to pave the way for a new regime of advocacy where substantial justice as against technical justice should hold sway.

A new regime of advocacy, therefore, became an imperative, if these grave concerns were to be redressed and hence the legislative intervention by a good number of states in Nigeria, through substantial amendment to the provisions of their Civil Procedure Rules, aimed at promoting judicial efficiency by curtailing the excesses of counsel in the name of bar advocacy, resulting in denial of justice and the denigration of the integrity and image of the judiciary.

These new rules of court introduced some highly innovative features to checkmate avenues for abuse of court process, prevalent under the old rules, such as the requirement of frontloading of trial processes, pre-trial or case management conferences, scheduling of proceedings, Written Addresses, Limitation in oral submissions, Restrictions on adjournments and amendment of processes, Requirement of written as opposed to oral submissions in all application including final addresses, ADR mechanisms etc.

The striking significance of these revolutionary provisions is that Judges have now become dominus litis, meaning that they are now the masters of the proceedings, in their court, with powers  to generally manage and control cases before them with their judicial binoculars, unlike under the previous regime of rules where litigants through their counsel determined the manner and speed of proceedings, in courts, resulting in endless litigations.

Most of the states in Nigeria, have therefore adopted the use of written advocacy or brief writing as opposed to oral advocacy, under their new civil procedure rules, as a means of discouraging oral advocacy in court, which had lent itself to abuse through circumlocution of counsel in most cases.

It is, therefore, obvious that the intendment of these new rules is to promote a just, efficient and speedy dispensation of justice, devoid of undue delay and unnecessary expenses, including assisting parties towards amicable settlement of their disputes.

With this new regime of written advocacy, the era of inundating the courts with lengthy oral submissions and addresses by counsel, usually punctuated by copious references to loads of law reports and practice books, strategically positioned in front of the judge, and aimed more at intimidating litigants, opposing counsel and judges alike, than promoting the cause of justice, has gone for good.

Prof. Achike JSC, a great jurist of blessed memory, once held ‘Today mastery of brief writing is mandatory to all legal practitioners who seek audience in the superior courts in the country. A legal practitioner will today not be allowed to display his brilliance in oral advocacy, unless he has shown proficiency and presented a meaningful brief.”

But it is also germane not to discount the admonition of Nweze C.C. JCA, another great jurist of prodigious intellect, in his recent publication on the new advocacy regime, where he posited that although the clear dominance of advocacy in brief writing over oral advocacy has come to stay, but brief writing as an art like oral advocacy, still calls for the mastery of the case.

In the final analysis, what operates in the mind of litigants when approaching the courts with their complaints is not to be entertained by the legal wizardry and circumlocution of counsel, but the search for pure and undiluted justice, and once this aim is defeated, he goes home dejected feeling that justice had been slaughtered on the alter of technicality. This inflicts serious dent on the image of the court as the last hope of the common man in the quest of justice.

• Agbedo is an author and Principal Partner at Crown Law Chambers, Lagos.