They spoke frankly. Judges and lawyers did not even absolve themselves of some of the ills plaguing the nation. It all happened at the yearly Law Week of the Nigerian Bar Association (NBA) Lagos Branch. JOSEPH JIBUEZE was there.
The economy suffers when the legal system is inefficient. In the words of Deputy Chief of Staff to the President Mr Ade Ipaye, “The state of a legal system determines a society’s development. If the legal system fails, all else will fail.”
That several court cases outlive those who filed them is not new.
Due to what experts say are weaknesses in the laws, rules and procedures, which are prone to abuse, it takes several years to resolve disputes.
Finding solutions to the intractable problem of delays in determination of cases is always a talking point whenener stakeholders meet.
So it happened during the Bar/Bench forum of the Nigerian Bar Association (NBA) Lagos Branch law week technical sessions.
Its theme was: Law and Development in an emerging economy. The forum had the sub-theme: Administration of Justice and the Courts: A dialogue between the Bench and the Bar.
Participants from the Bench included Justice Supreme Court Justice Bode Rhodes-Vivour, who chaired it, Justice Habeeb Abiru of the Court of Appeal, Chief Judge of Delta State, Justice Marshall Umukoro, represented by Justice Flora Azinge and Justice Mojisola Olatoregun of the Federal High Court, represented by Justice Saliu Saidu.
Senior members of the Bar who spoke at the session were: Pro-Chancellor of the University of Lagos (UNILAG) Dr Wale Babalakin (SAN), Council of Legal Education (CLE) Chairman Chief Emeka Ngige (SAN), Mr Tunde Fagbohunlu (SAN), and former Lagos Solicitor-General Mr Fola Arthur Worrey.
Setting the tone
Ipaye, a former Lagos State Attorney-General who gave the keynote speech at the technical sessions opening, emphaised that development will continue to elude Nigeria until its gets its legal system right.
He recalled a CNBC Africa editorial on criminal cases involving five former bank chief executives whose trials began in 2009, of which only one has been decided through plea bargaining.
To him, the impression is created, even to those outside the country interested in the Nigerian economy, that people can engage in grand corruption and get away with it because they know the wheel of justice grinds slowly.
“I do not need to stress to this audience that this is only a small example, an almost infinitesimal proof of the glaring inadequacies of our legal system.
“With due respect to the erudite, upright and hardworking judges on the bench at all levels, we know full well of rather large scale corruption in the judiciary, and of our colleagues, lawyers who would initiate and facilitate such corruption, at the same time trying all tricks and playing all games to frustrate the due adjudication of a case; all for the sake of their obviously crooked clients.”
‘Corruption a major problem’
Ipaye explained why corruption in the Judiciary is a bigger problem than in the executive and legislature.
“There is corruption everywhere – in the executive, in the legislature, in business and in the general public. This has undoubtedly constrained our emergence as a fully developed economy.
“Judges and lawyers must be singled out because it is the legal system, of which we are the prime custodians, that is expected to solve these systemic problems.
“In other words, the legal system is the key to everything. If we don’t solve this problem, the entire society is doomed to failure,” he said.
The former UNILAG law teacher identified some of the problems faced by the Nigerian legal system:
- Importation of an alien system;
- Neglect of the judicial system through inadequate funding;
- Interference with the independence of the judiciary;
- Outdated laws;
- • Poor investigative and law enforcement machinery;
- • Inadequate continuous training for lawyers and judicial officers.
Consequences of a failed justice system
Ipaye believes the country stands to lose “everything” as a result of “the retreat of law”.
“What can we lose when the legal system fails? The answer is ‘everything!’ Sadly so.
“If the system fails a bit, we lose some things. If it fails a lot, we lose a lot. If it collapses, we lose everything, at least everything that we now regard as civilisation.
“This is because the law offers us a framework for regulating behaviour. It guides conduct and foretells consequences.
“By penalising or imposing damages on offenders, tortfeasors and those who fail to keep their promises, it deters bad behaviour.
“Law is then the pillar of commerce and prosperity. As Lord Mansfield puts it in the case of Vallejo v. Wheeler, ‘In all mercantile transactions, the greatest object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other.’”
Ipaye continued: “Judicial corruption reduces public confidence in the country’s justice system. If the legal system does not work efficiently, the economic system is bound to go the same way.
“This means that suspected incidents of misconduct are less likely to be reported, given the prevailing belief that justice is unlikely to be served.
“Similarly, it can affect the attitude of investigators and prosecutors who might have less incentive to investigate and prosecute cases diligently.”
Speaking further on economic consequences, Ipaye said a failed judicial system means that competition is not moderated by rules, as businessmen would be afraid to rely on contracts they know they cannot enforce.
Besides, investors would be afraid to buy shares in companies, knowing that regulatory institutions are weak and companies falsify their books with impunity, with those that dare the shark-infested waters bound to seek excess profit for their troubles.
Law as economic enabler
According to Ipaye, “without a proper legal framework and a functional enforcement mechanism, economic development would well be a mirage”.
He noted that when properly deployed, it is the law that will respond to economic challenges and proffer solutions that will stimulate investment.
Ipaye proffered the following solutions:
- We must address the rapid retreat of law by sharpening our legal system and enforcement machinery. That is the only way to reverse the trend of impunity and race to the bottom.
- We must stress the human and ethical factors, especially in the legal profession. Orientation of lawyers in training must be carefully structured to include the ethical elements at all levels. In this regard, jurisprudence especially, must be taught, not in the abstract but with practical case studies.
- To ensure that the law works as a tool for economic development, it is important to ensure that we put in place laws that will drive the economic policies of government. These laws must as of necessity ensure inclusiveness of all economic players and create a conducive climate for investment. Then we must back them with appropriate monitoring and enforcement mechanisms.
- In an emerging economy like Nigeria, there should be no place for a convoluted legal system that thrives on technicality at the expense of justice.
- • To ensure that our legal system and our laws are able to play a pre-eminent role in transforming the economy, there is a need for wide interdisciplinary consultations.
‘Invest in rule of law’
Former Lagos Attorney-General Olasupo Shasore (SAN), who moderated one of the sessions, called for “increased investment in the rule of law”.
He noted that countries with high growth rates also have high levels of compliance with the rule of law.
“We need to increase our investments in the rule of law,” he said.
Jurists speak
Justice Rhodes-Vivour was of the view that past judges were “highly disciplined” than today’s judges.
He also blamed military rule for part of the judiciary’s the problems, especially with regards to appointments.
According to him, only those close to military rulers were appointed as judges. “That is what has been going on all along,” he said.
Undue fear of NJC
The Supreme Court Justice also blamed the rules of court.
“Our rules are too lax. You can do anything you want to do with our rules. You can come to court and make sure a case doesn’t go on.
“The judge apparently is afraid to rise up to the situation and call you to order, because if he does that you will write a petition to the National Judicial Council (NJC), and before you know it, you’re on your way out. This is the plain truth.
“Lord Denning said that a judge is the master of his court. A judge must not be harassed, or attacked in any way.
“The only time you bring a judge to order is when he is accused of corruption,” he said.
Justice Rhodes-Vivour thinks it is wrong to dismiss a judge because of the way he exercised his discretion.
“A judge gives an ex-parte order; you don’t like it, you (should) appeal, and it will be set aside. Why are you sacking a judge because he gave an ex-parte order?” he asked.
‘Why Supreme Court is congested’
Justice Rhodes-Vivour suggested that the laws should be amended to limit the appeals that go to the Supreme Court, such as pre-election matters.
He said: “There are cases about who is a party’s candidate in an election. We’re not talking about the election itself. Imagine the Supreme Court spending time to decide who is the candidate in a particular constituency.
“The other day, members of the European Union (EU) came to the Supreme Court to watch proceedings. We were deciding who were candidates of some parties. That went on from about 9 am to 1pm.
“At the end, the EU members said: ‘You judges appear to be the most patient we have ever seen. What is your business deciding who the candidate of a party is?’”
He called for an amendment of provisions in the Electoral Act that allow for such matters. “Those are the kind of things that cause backlogs,” he said.
To him, unlike advanced democracies, there are too many election petitions in Nigeria “because the stakes are too high”.
The jurist also noted that standards have fallen, which he said has a ripple effect on the entire judicial system.
Abiru: Attitudinal change needed
Justice Abiru believes that part of the problem lies in the attitude of lawyers and judges to their work.
“No matter how many rules you put in place, you cannot legislate cultural transformation. It’s not possible,” he said.
‘Quality of judgments low’
Justice Abiru noted that emphasis has shifted from the quality of judgments to the number of judgments judges deliver.
“Quality of judgment does not play significant role in elevation,” he said.
NJC requires judges to make returns on a certain number of judgments over a period.
Justice Abiru was of the view that the requirement has robbed the judgments of high quality.
Besides, he said unlike in the past when academics took time to criticise judgments and put judges on their toes, “nobody checks quality of judgments anymore”.
Inefficient court management
The current practice is that the most senior judge automatically becomes the head of court. To Justice Abiru, not all brilliant judges are good managers.
“Seniority does not mean leadership ability,” he said.
To him, courts should be managed by those who have been professionally trained.
“We need to start professionalising the system of court management,” Justice Abiru said.
‘Frivolous petitions a distraction’
Justice Saidu disclosed that he handles between 26 and 31 cases daily.
The cases, he said, are bound to suffer when a judge is invited by the NJC over “frivolous” petitions by lawyers or litigants.
According to him, judges should be better protected to enable them focus on their task.
He also wants the laws amended to limit what goes on appeal.
SANs speak
Fagbohunlu recalled an incident that sheds light on why dockets are congested.
“In the 70s and 80s, jurisprudence encouraged judges to actively discourage frivolous cases from being filed by being courageous enough to strike out cases that did not disclose reasonable cause of action.
“What is the practice of today? I cannot remember when last I succeeded in getting a case struck out on an application that the case disclosed no reasonable cause of action. I’ll give an instance.
“I appeared before a judge with an application to strike out a case for not disclosing a reasonable cause of action. This application had been adjourned for over one and half years.
“Because I expressed frustration, the judge told me in open court that what would I gain by disposing of this case on an application? ‘I as a judge do not benefit from doing so,’ he said.
“He was referring to a principle of the NJC that assesses judges on the basis of final decisions that they give.
“So, the practice of today discourages frivolous cases from being disposed of,” he said.
The SAN said rules and laws must be amended, such as those that permit interlocutory appeals in commercial disputes with economic implications.
Babalakin: Problems run deep
Babalakin was of the view that Nigeria’s legal training has become “abysmally poor”, as there is hardly an engagement between lecturers and students due to overcrowded classrooms.
He also bemoaned the delays in justice delivery, recalling that it used to be unheard for a lawyer to go to court and seek an adjournment. Such a case would be struck out.
Babalakin said in the past, judges gave instant rulings. Cases were adjourned for judgment in a matter of days rather than years.
“The legal system we have is endangered. The legal profession we have has been messed up completely.
“Let’s come together. Let’s call all those who know and let’s begin a new process. We have to start again,” he said.
The Bar’s role
Ngige said the Bar speaks for the Bench. According to him, the Bar has not lived up to expectation in recent times, compared to the days of the late Alao Aka-Bashorun as NBA president.
“We now have a Bar Association which people use to make money and project their private interests. We cannot help the Bench. The Bench is in trouble as far as I am concerned.
“What we should do is to look inwards. The day we stop spending money to be voted for as president of the Bar or chairman of a branch, that is the day our redemption will start.
“When we were at the Port Harcourt conference in 2010, Rotimi Amaechi told us: ‘Physician, heal thyself’. We should look inwards.
“What has happened with (former Chief Justice) Onnoghen would not have happened if we had a vibrant NBA.
“When you have a weak NBA, where the officers are in disarray, where there is no mission and vision, it will continue to happen,” Ngige said.
Lagos State University (LASU) Vice-Chancellor Prof Lanre Fagbohun (SAN), who was the lead speaker in one of the sessions, said every stakeholder must play by the rules to make the system work.
“There is so much crisis because we’re not doing what we’re supposed to do. When the apply the rules as judges and lawyers, we’ll make that difference.
“If you violate any law, you should face the consequences. We are the people creating the bedlam. The moment we start enforcing the law, we’ll make a difference,” Fagbohun said.
