In this concluding part of a report on the judicial system, JOSEPH JIBUEZE provides more evidence of how other factors aside sabotage, blackmail and undue delays contribute to the snail speed of the justice system.
Apart from delays caused by abuse of legal technicalities, other factors contribute to denial of justice in criminal cases.
Justice Yetunde Idowu, one of most senior judges of the Lagos State High Court, said a justice system that is remote, unaffordable, slow or incomprehensible to ordinary people effectively leads. to injustice.
“The rule of law in itself is collated with economic growth and investment, and an effective judicial system promotes better livelihoods for all people,” she said.
The judge said cogs in the wheel of justice include financial and budgetary constraints; lack of adequate institutional reforms and modernisation; low investment in information and communication technology; lack of political will and commitment to a better society; use of archaic and outdated laws, procedures and processes that are riddled with loopholes.
Other adverse factors, she said, are lack of public trust and confidence in the system; corruption due to lack of accountability and transparency; inadequate courts; indiscipline, among others.
According to a former Lagos State Attorney-General and Commissioner for Justice, Prof Yemi Osinbajo (SAN), failures in criminal justice are not only a significant disincentive to foreign investment, but constitute a burden on the cost of doing business.
To him, interlocutory appeals on practically any issue have remained a major hindrance to early disposition of cases, especially as it almost always involves a stay of proceedings at the court appealed from.
Osinbajo pointed out that relative to Nigeria’s population, the number of convicts per capita is extremely low.
“This may either mean that Nigerians are an incredibly law abiding people or that their custodial sentences are not frequently used or that the criminal justice system has quite significant problems. Russia with a population of only 3million higher than ours has almost 20 times as many convicted prisoners as Nigeria,” Osinbajo said.
The professor of law said interminable delays reduce the chances of ever concluding cases in a satisfactory manner. Witnesses lose interest. Investigating police officers are transferred outside of the states where the offences were committed. Judges are also transferred and cases start de novo.
A frontline lawyer, Chief Afe Babalola (SAN), said corruption in the judiciary and the incompetence of some lawyers and judges do not help the situation.
An ill-prepared lawyer will seek an adjournment at the first opportunity, and a judge who lacks the intellectual capacity to adjudicate a case will indulge such lawyers and adjourn even the simplest of rulings.
Babalola said: “If a lawyer lacks the necessary competence for the prosecution or defence of any given case, he unavoidably becomes a hindrance and liability to the course of justice which under normal circumstances he is supposed to serve. The law reports are replete with cases that were painfully lost by nothing but the ignorance and incompetence of lawyers.”
He said there had been several instances where lawyers frustrate the hearing of court cases, especially when they know they have weak defences.
“Some go to the extent of writing false letters stating that they were otherwise engaged in the Court of Appeal or Supreme Court when in fact they had no case pending in those courts. Such conduct is clearly unbecoming or unworthy of any lawyer,” Babalola said.
For judges, it is not surprising to see some of them who preside over criminal cases sit by noon when courts ought to resume by 9am. Some exhibit crass laziness.
According to Babalola, before a judge can dispense justice, he must possess the necessary judicial qualities of integrity, deep knowledge of the law, honesty and a sense of justice itself. Unfortunately, many of them, he said, lack such qualities.
At the heart of incompetence is corruption, which is manifest in the process of appointment of judges.
“It must be realised that a knowledgeable but corrupt judge is a great peril to the administration of justice. He is bad if not worse than an honest but an incompetent judge,” Babalola said.
Besides, he said there are cases in which judges for reasons best known to them personalise issues and frustrate the exercise of the right of appeal by litigants by their refusal to release records of proceedings or their judgments. Others, he said, lack courage and succumb to undue political influences.
According to Babalola, poorly trained and inefficient court officials are also a cog in the wheel of justice.
“Some court registrars in Nigeria have become so infested with the virus of corruption that they deliberately frustrate the doing of justice in our society,” he said. Some officials, he added, deliberately omit to list cases for hearing. The sad effect is the the judiciary has lost its fear factor.
A former Lagos State prosecutor, Fola Arthur-Worrey, said: “The courts have lost authority. Today people write petitions against judges and then the judges will hands-off the cases.
“Unfortunately for us, we don’t seem to understand the implications of weak institutions; we don’t understand the signals it sends to citizens and to the rest of the world. A country is only taken as seriously as its law and justice systems are managed.”
Most courts are burdened with antiquated physical and legal infrastructure that renders them extremely slow and inefficient. Many judges must take their own notes in longhand while, in the words of one judge, they “sweat and choke” in stiflingly hot courtrooms – hobbling the speed of any proceedings. The judiciary, including appellate courts, also strains under the burdens of an excessive caseload.
A judge of the Delta State High Court, Justice Roli Harriman, said only a few states, such as Lagos, have any form of electronic recording of proceedings.
Majority of courts, she said, still use archaic equipment and judges write longhand, which is later reproduced by typists.
“The use of longhand and typewriters obviously tend to delay justice,” she said.
Another factor, the judge said, is that little use is made of software designed for case management and legal research. This lack of tools leads to judges adjourning till further dates rulings they could otherwise have delivered immediately.
“Apart from a few states, the acquisition of this software is not on the priority list of governments,” Justice Harriman said.
Delays, the judge added, even start from the filing process.
“I am hoping a time would come when e-filing will take centre stage in the judiciary, a time when lawyers can, with a registered access code, file their processes and make payments online,” she said.
Besides, it will not be out of place if court registries accept Point of Sale (POS) payments.
Lack of courtroom technology, such as video conferencing, is also a challenge. In criminal cases, a greater number of adjournments are due to investigating police officers being transferred to other locations or being sent on other assignments. Some witnesses are also reluctant to come to court.
“If their evidence can be taken through video conferencing, then this would eliminate the delay,” Justice Harriman said.
The physical state of some courts also does not help speedier justice delivery. Some courts do not have air conditioning, and some courtrooms are like cubicles.
For instance, in the Federal High Court in Ikoyi, Lagos, courtrooms used by Justice Okon Abang and Justice Mohammed Idris, two of the busiest judges, for instance, are so small that lawyers take turns to go in for their cases.
Several of the lawyers who make it inside, stand during proceedings waiting for their turn. Majority stand outside the door, straining to hear their cases called. Others flee for fear of suffocation. The consequence is that the judges could easily get tired in such working conditions.
In some states, lack of adequate number of courtrooms force judges to share spaces, alternating sitting times. This leads to unsecured storage of court documents, leading to “loss” of case files, and provides room for corruption.
“The bad shape of court buildings does not only reflect poorly on the relevance of justice sector institutions, but also prevents them from working effectively. It is also true that those working in these buildings get affected by the lack of a somewhat dignified working environment. Most importantly, decrepit infrastructure and dysfunctional design exacerbate delay and affect the quality of work done,” Justice Harriman said.
A Senior Advocate of Nigeria (SAN) and former External Affairs Minister, Mr Odein Ajumogobia, believes delays have unfortunately become a recognised and accepted strategy in escaping justice.
“It obviously serves the defendant well when he has no defence or simply needs to buy time to answer a complaint and is therefore only interested in putting off the anticipated final decision by the court for as long as possible,” he said.
According to him, the most common causes of delays and abuse are the preliminary objection (the outcome of which is appealed up to the Supreme Court); frivolous arguments and false affidavits; longer adjournments due to full dockets; lack of strict adherence to time limit provisions and scheduling (with no severe and deterrent cost); poor service of court processes (with parties claiming they were not ‘properly’ served); frequent amendment of processes (which foist adjournments and further amendments); abuse of the right of appeal, and lack of enough punitive costs which, to Ajumogobia, should be in millions of naira for deliberate time-wasting.
EFCC chairman Ibrahim Lamorde said the commission is helpless regarding the causes of delays.
“You have to know where the responsibility of the EFCC starts and ends. When we take people to court, our duty is to prosecute them. But some of these accused persons/ suspects are taking advantage of the criminal laws.
“The unfortunate aspect for us is that when such criminal proceedings are delayed, you start having witness fatigue. Some of the witnesses would have died and some officers transferred,” Lamorde said.
He expressed regrets that some cases filed by EFCC against suspects, including politically exposed persons eight years ago, are still pending.
He added: “We have cases we filed since 2006; we have been going in and out of the Supreme Court because of applications here and there.
“We cannot change what is obtainable at the court because the laws of the land allow people to go to court. Some people are delaying cases to the detriment of the people of Nigeria and the affected states.
“The outcome of these cases would have definitely defined what people will get. These funds to be recovered ought to be used for the development of these states,” Larmode added.
Experts seek way out
Falana said the gross abuse of judicial process is encouraged under the criminal legal system. This, he said, must change.
On deliberate abuse of injunctions, Falana said: “The dangerous practice calls for an urgent review of the criminal justice system in the overall interest of the society.
“If the trend is not stopped, other people accused of engaging in armed robbery and terrorism may soon be asking for interim, interlocutory or perpetual injunctions to stop the state from investigating or prosecuting them.”
The human right lawyer described as painful the fact that the lawyers involved in the prosecution and defence of the cases that have lingered endlessly are Senior Advocates of Nigeria (SANs).
“The Nigerian Bar Association (NBA) owes the legal profession a duty by calling lawyers who frustrate the prosecution of corruption cases to order. Trial courts are also enjoined to report such lawyers to the Disciplinary Committee of the NBA for appropriate actions,” Falana said.
To him, judges too must be bold and strong in the face of such intimidation, and should punish unscrupulous for contempt in facia curia (in the face of court).
He condemned what he called the seeming indifference of the Attorney-General of the Federation (AGF) to the criminal abuse of the judicial system.
“While the Federal Government is clearly complicit in some of the abuses suffered by the criminal justice system, at other times the AGF merely stands aloof, and watches our common humiliation as a modern state, which is what those conducts amount to.
“As the legal precept posits, ‘justice delayed is justice denied’; and in this instance, both an accused and the state deserve to have a speedy and transparent trial at all times.
“A situation whereby the poor are daily railroaded to prison while criminals who are rich and powerful are allowed to breath the air of freedom has to stop. Judges should, therefore, desist from conferring immunity or granting perpetual injunctions restraining anti-graft agencies from investigating and prosecuting politically exposed persons.
“In a display of class solidarity with the ruling class, the EFCC charges the rich accused of looting the treasury with money laundering while the poor are charged with stealing.
“Since the penalty for money laundering is two years or payment of fine while stealing attracts seven years imprisonment, the discriminatory treatment of the two sets of criminal suspects should stop in the interest of justice and fair play,” Falana said.
The rights activist also wants strict adherence to the new practice directions of the Federal High Court, the Court of Appeal and the Supreme Court that require accelerated hearing of cases pertaining to corruption and terrorism as well as appeals arising from them.
For instance, the trial of such cases is required to be conducted day by day at the Federal High Court. Regrettably, the practice directions are not being adhered to by all the relevant stakeholders. Hence, corruption cases are adjourned for all manners of reasons contrary to the letter and spirit of the law.
Also, in view of the presumption of innocence in favour of accused persons, the prosecution should stop opposing applications for bail on frivolous grounds, Falana suggested.
In other words, the prosecution and the defence counsel should agree on the conditions to be attached to bail to enable the defendants to stand trial.
However, where the parties are unable to reach an agreement, the trial judge should impose bail conditions. The procedure, Falana believes, will go a long way to accelerate the trial of criminal cases.
“To arrest the undue delay in the prosecution of criminal cases, I suggest the introduction of front-loading and Pre-trial Conference. The prosecution should go beyond making available to the defendants the proof of evidence. There should be sworn statements of all witnesses which should be served on the defendants in line with the current practice in civil cases,” Falana said.
Babalola said since looting of public fund by office holders is a serious wrong against the society, the government must show the will to prosecute offenders rather than shield them.
“It would be incompatible with justice for the government to neglect or refuse to bring appropriate criminal charges against public officers who have been indicted simply because they have apologised or have resigned from their posts,” he said.
Besides, there is the urgent need to weed out unethical behaviours, ineptitude resulting in low productivity, mal-administration and lazy, incompetent judges, Babalola said.
He also called for a comprehensive review of the conditions of service of judges, including salaries.
“Judges should be well paid, properly housed and well equipped with modern verbatim recording machines, trained stenographers, photocopiers, regular power supply and air conditioning,” he said.
Justice Harriman wished for a time when evidence can be displayed electronically in front of the judge; when witnesses or counsel can be allowed to demonstrate or annotate situations or scenarios by using a fingertip directly on a monitor; when live video presentations of witnesses who cannot be physically present for a trial or hearing can be conducted; and when lawyers can create their own slide show presentations to enhance their arguments.
“For judges, technology can increase opportunity to control the proceedings, set time limits, and decide matters expeditiously,” Justice Harriman said.
Eminent professor of law, Itsay Sagay (SAN), believes it is everyone’s duty to save the judiciary from collapse, being the “ultimate source of democracy and rule of law”. He prayed for a return to the past, when it was inconceivable to bribe members of the bench.
“It was absolutely unthinkable to bribe justices of the past. Even the contemplator will rot in jail. In the 80s, we could predict the outcome of a case. Judges created remedy where there was none. They were not colourless and neutral about justice. They had a philosophy,” he said.
Prof Sagay also wants a dislodgment of those he referred to as “judicial mafia.”
“There is a mafia in the judiciary, a mafia that is untouchable, a mafia that decides what happens to us in this country. You cannot tell the truth as far as the mafia is concerned,” he said.
According to him, the Supreme Court, for instance, is too limited in the choice of those appointed as justices. In his words, “nothing is said about merit, character. They don’t tolerate bringing in fresh faces either.”
He recalled that in the past top professors of law and academics were appointed to the appellate courts, but not anymore.
“Now, incompetence is recycled among themselves, so, there is no growth in the judiciary. What prevents excellent SANs from going to the Supreme Court so that the mafia will not continue to control things?
“Justices should stop hobnobbing with the executive. They should not consider themselves as part of the executive. They must insist on playing their role without fear or favour,” Sagay said.
Prof Osinbajo called for a fundamental restructuring of the rules. “It is my view that the problems of delay especially require some hard thinking and collaborative interaction between the Chief Justice of Nigeria, the Attorney-General of the Federation and the heads of the National Assembly,” he said.
These interactions, he added, must address fundamental issues on changing the rules to engage the challenges of Nigeria’s peculiar circumstances.
“Clearly, there ought to be a more stringent costs regime to prevent dilatory tactics of counsel. Judicial accountability for delays in delivering rulings and judgments must be closely monitored,” he said.
Prof Osinbajo also wants a limitation of interlocutory appeals, which are often abused.
“Constitutional amendments providing for the termination of interlocutory appeals at the Court of Appeal is much needed. There need also be clear and definitive intervention by the Supreme Court on notorious and recondite issues frequently deployed to delay trials.
“Issues of jurisdiction require one clear Supreme Court decision which lays down the principles and the law. Some disciplinary action may be required with the full backing of our courts to check counsel who in the face of clear authorities delay trials by raising such issues,” Osinbajo said.
A Supreme Court justice, Kudirat Kekere-Ekun agrees with Osinbajo. In addition to “a major attitudinal change,” she said there is the urgent need for constitutional amendment to limit the Supreme Court’s jurisdiction so that interlocutory decisions or cases where there are concurrent findings of fact by the two lower courts and there is no dispute as to the law should terminate at the Court of Appeal.
Respect for ethics of the profession, which is severely, lacking, must be enforced, she said.
“Where a client has a bad case, it is unethical to institute an action in court merely to frustrate his opponent and delay the fulfillment of an obligation. The same applies to a defendant who has no defence to an action but engages in all manners of delay tactics, including the ubiquitous preliminary objections on jurisdiction, wasting valuable judicial time and expense,” Kekere-Ekun said.
Ajumogobia said delays cannot be eliminated as long as deliberate time-wasting is the objective of “gifted and talented lawyers.”
According to him, justice can only occur when there exists a degree of uniformity, competence and integrity of not just the lawyers and the Bar leaders, but other court officials.
Ajumogobia said: “As long as we choose (and it is always a conscious choice by counsel) to deliberately exploit the existence of constitutional lapses or the inevitable and necessary flexibility of procedural rules, curbing delays will remain an illusion.”
Justice Idowu believes that administration of justice will be enjoyed by people when they are able to use institutions that are quick, relevant and effective in meeting their needs for justice.
“A functioning justice system requires the effective supply of justice services by state and non-state entities as well as the expression of effective demand by people who trust the system enough to use it,” she said.
Some judges are easily manipulated by the executive and the corrupt political class. It is not strange to find criminal suspects seeking a transfer of their cases from one judge to the other, all in a bid to get a more pliant, easy-to-manipulate or corrupt judge. The process of appointment of judges, therefore, needs to be more transparent.
A Senior Advocate of Nigeria and Queens Counsel (QC), Mr Oba Nsugbe, said the secrecy surrounding judges’ appointments must be stopped.
“We need to make greater efforts to completely demystify the system of judicial appointments in Nigeria from beginning to end,” he said.
Nsugbe said he once sought to know how to go about applying to be a judge in Nigeria, and to learn about upcoming vacancies, criteria for appointment and the process, but came up with no reliable information.
He interrogated various official websites for answers, read a number of publications, and spoke to people in the judiciary, and still got no useful information on how to be a judge.
His words: “The answers never seemed complete or exhaustive. This needs to change. In so important an area, you can never have enough clear, systematic information about what each and every stage entails – exactly what is needed of the applicant, when, who will assess it; how it will be assessed; who will be spoken to; against what criteria, etc. There needs to be more transparency about the appointments procedure. The lack of it acts as a disincentive to many aspiring judges,” he said.
Another provision in the rules that has caused delays is the principle of a case starting de novo (afresh) where witnesses had been called before a judge is transferred, is elevated to a higher court, or dies and another judge takes over. In such a situation, witnesses would have to be recalled.
Lagos lawyer Mr Segun Ajibola (SAN) said aspects of this provision needs to be revisited.
“It’s difficult for a case not to start de novo. One of the functions of the judge is to watch the demeanour of the witnesses before him, not just listen to their testimony alone. He has to see that the evidence being given is given with conviction, and in a manner which portrays the truth.
“What I will be happy to see is that the aspect of the requirement for trial to start all over as it is in most cases is restricted strictly to aspects which evidence by witnesses have been taken, so that whoever takes over assumes all the processes and procedural steps taken before then.
“In this country where our approach to things is most times questionable, once you have a witness come in once and give evidence, getting him back most times to repeat most things he has said is a problem. Situations change and influences would come in. Eventually some people escape justice.”
To lawyers whose stock in trade is to frustrate cases by means foul or fair, Ajibola said: “We need to re-orientate ourselves and appreciate the fact that at the end of the day we’re all losers.
“It (deliberate delays) may work for you today, because you’re on this side of the law. If tomorrow you find yourself on the other side, and the same thing happens to you, you will lose.
“Encouraging that kind of approach to administration of justice is something that will do no one no good at the end of the day. It may help in resolving a temporary situation, but in the long run, we’re all losers.
“Perhaps there is no other country that has as much causes of delays in dispensation of justice as Nigeria. We need to evolve better arrangement which will be in place to curb the excesses of some of us who abuse the process.
“I think it requires a thinktank approach, as we try to do regarding law reforms, which gave rise to the new Lagos State civil rules that came from the need to fast-track and reduce bottle-necks and roadblocks in dispensation of justice.
“However, no one process is perfect. Any process designed by man stands to be defeated by the same man. The same man who invented the pencil invented the eraser. We don’t benefit from abuse generally. As far as I’m concerned, we’re all losing.
“Once we can accept that as a platform, and get people to understand that the failure of one is that failure of all, the sooner we will begin to approach the situation from a standpoint of positive and honest sense of purpose.”
To many who have already lost faith in the system, true justice will only remain a fantasy.
