Keynote address by former Nigerian Bar Association (NBA) General Secretary Dele Adesina ( SAN) at the NBA Ijebu-Ode Law Week
The topic of my paper: Towards a better administration of justice in Nigeria: Case for systemic structural and attitudinal transformation presupposes that with administration of Justice in Nigeria today, we are not where we should be. The challenges are legion and multi-dimensional. They are systemic, structural and attitudinal in my humble opinion.
Let me assure you that, there are challenges, is real. However, that there are solutions to the challenges is much more real. Please recognise as I do that there is no problem without a solution just as there is no question without an answer.
The first step towards success in life is taken when you refuse to be a captive of the environment in which you live. To be a captive of course is to do nothing and resign one’s self to fate even when things seem to be going wrong around you. Many people want a better tomorrow without any attempt to do anything today forgetting that tomorrow belongs to those who prepare for it today.
I intend to speak to you as a Legal Practitioner, trained under the common Law tradition, practicing Law in a Country operating a constitutional democracy with the full understanding of the pre-eminent importance of Justice and the supremacy of the document called the Constitution.
According to Professor Bambo Adewopo (SAN): ”The Law and its practice have remained one of the foundations of a civilized and progressive society. Law is the significant life-wire for maintaining societal equilibrium and social justice. Law is the foremost steward of Nigeria’s constitutional and political history as a corporate entity. The Legal Profession has remained at the vanguard of that history playing important roles at every junction without doubt. Law and its practice are therefore the indispensable drivers and levers of development in Nigeria”.]
Former Chief Justice of Nigeria, Justice Musdapher ( CJN), once commented on the role of the Judiciary in a constitutional democracy: ”The Judiciary lived and continued to live up to its Constitutional and historical role as the bastion of Constitutional democracy, the most critical leg of the tripod on which democracy rests, the last hope of the common man, the downtrodden and the defender of the citizens by upholding their fundamental rights.”
This onerous responsibility of the Law and the practice of Law as the indispensable drivers and levers of development in Nigeria indeed in any Country is a direct function of the efficiency, effectiveness and proper administration of Justice. In other words, a proper, effective and efficient administration of Justice is fundamental to Justice dispensation in any society.
The challenges/failure of the present Delay and Congestion
Any practitioner, users and or beneficiaries of the system will readily identify this as a major challenge facing administration of justice in Nigeria. I have argued both on television and at public fora of this nature that delay and congestion in our courts are the direct products of the triangular structure of the judiciary established by the Nigerian Constitution. It is also a direct function of the archaic and anachronistic system that is still in operation in our courts. Yes, attitude of the practitioners both at the Bar and on the Bench may have contributed, but primarily, delay and congestion in our Courts are products of systemic and structural problems. Under the Constitution.
The Constitution of the Federal Republic of Nigeria 1999 (as amended) hereinafter in this paper referred to as “The Constitution” established the following structure in chapter 7 of the constitution. The High courts of the states, the Federal High Court, the National Industrial Court as well as the High Court of the Federal Capital territory. Section 237 of the Constitution also established the Court of Appeal to hear appeals from: i. The Federal High Court ii. The High Court of the Federal Capital Territory iii. High Court of a State iv. Sharia Court of Appeal of the FCT v. Sharia Court of Appeal of a State vi. Customary Court of Appeal of a State vii. Decisions of a Court Martial or other Tribunals
The Constitution also created the Supreme Court of Nigeria to hear and determine disputes between the Federation and a State or between States and to hear and determine appeals from the Court of Appeal
This I submit is the triangular structure given to us by the Constitution. Now a little analysis of the near impossibility imposed by this structure. In Lagos state alone, we have 56 courts, Rivers state, about 40 Courts. The Federal Capital territory, about 30 courts. Some other states like Kano, Imo, Oyo, and Kaduna may have as many as 15 courts with other smaller states having between eight and 10 courts.
On the average, let’s assume for purposes of this discussion that we have about 40o courts presided over by 400 judges in the State High Courts nationwide including the FCT and about 50 courts in the Federal High Court. Some of these judges, particularly in Lagos, Rivers and Abuja have as much as 800 cases in their diskette. Appeals go from these several courts to the Court of Appeal with only about 16 divisions.
On the top of the triangle, we have the Supreme Court. Again, appeal lies from the 16 divisions of the Court of Appeal to the only and only one Supreme Court. Now tell me; with what miracle can we avoid delay and congestion with this structural setup in the nation’s judiciary. I do not need to tell you because you know already that about 70 to 80 per cent of the judgments of the several State High Courts and the Federal High Courts go on appeal to the Court of Appeal while not less than 75 to 85 per cent of such appeals end up at the apex court.
Recently, the Chief Judge of Oyo State, Justice Munta Abimbola was quoted as saying that ”Criminal cases should not exceed 180 days from the period of arrest to completion of trial under the Administration of Criminal Justice Law 2016 of Oyo State.” By the provisions of Section 396(3) of Administration of Criminal Justice Act 2015 which is being replicated by many states of the Federation, criminal matters must be heard from day to day.
Take for instance; a judge has 25 cases on his cause list per day, suppose 10 out of the 25 are criminal cases, which according to the stipulation of the law must be heard from day to day. Assuming the Judge takes only one witness per case, per day, assuming further that each case takes one hour for examination in chief, cross examination and re-examination as well as possible objections and rulings, he will be spending 10 hours per day; Although he is expected to resume by 9:00 am and close by 3:00 pm, a period of 6 hours only. How realistic or practical are these provisions of the law? Assuming he has the capacity to work for 10 hours, 9:00 am to 7:00 pm, can he do this every day?
It is my submission that in the reality of our situation and in the face of the inadequate infrastructural facilities and the available human capital, the stipulation by the Law is not only inherently unachievable, the recommendation by the learned Chief Judge is impossible of performance. We can see vividly that the problem of delay which of course directly leads to the congestion I our administration of Justice is a product of the Constitution which I have argued severally is flawed in many respect.
Another systemic challenge is that of longhand writing in our courts. An average judge in Nigeria, with very profound respect is a verbatim recorder like a secretary. Barristers’ arguments and submissions are written down in most cases word for word, comma for comma, full stop for full stop, and you do not expect a delay? Of course, there will be delay.
How about interlocutory appeals which in most cases run from the High Court, all through to the Supreme Court. Depending on the subject matter of the interlocutory appeal, you spend about 10 to 12 years journeying from the High Court to the Supreme Court. Upon the determination of the interlocutory appeal if it succeeds, a final order is made remitting the matter back to the High court to be re-assigned to another judge and to start de novo. On the other hand, if the appeal fails, you go back to the High Court or the Court of Appeal where it emanated to start from where you stopped.
In the words of the immediate past Chief Justice of Nigeria Honourable Justice Walter Onnoghen (I will comment on the manner of his departure from office later in this paper), ”the Nigerian judiciary has been faced with a lot of challenges; prominent among them is the delay in the administration of justice. To overcome some of these challenges responsible for the delay in the administration of justice, it behooves on each and every one of us to be disciplined, focused and innovative in the performance of our duties as ministers in the temple of justice.”
I believe that his lordship was talking about attitude when he made the above pronouncement. The discipline and may I add, character of the practitioners lead me directly to the issue of attitude of the practitioners.
Attitude of the Practitioners – the Advocates/Barristers
Please recall that I defined the word attitude earlier in this paper to mean the way of thinking or behaving about something. The manner, disposition, feelings, position with regard to a person or thing, the tendency or orientation especially of the mind. No wonder it is said that your attitude determines your altitude. It is submitted that the attitude of a good number of us have negatively impacted on a proper and efficient administration of justice in Nigeria. Talking about the attitude of the Advocates/Barristers, we readily experience the following negative attitudes in our courts daily:
Endless preliminary objections warranting endless rulings or in some cases adjournments. The effect of this has become more pronounced when you discover that bench rulings appear to be no more in our courts.
Frivolous interlocutory appeals. This is without prejudice to some serious minded interlocutory appeals, which I submit are few. The question is: why can’t such interlocutory appeals abide by the appeals on the final judgment. Secondly, why can’t interlocutory appeals terminate at the Court of Appeal to shorten the time being wasted on such appeals. As we speak, the Supreme Court is yet to deal with appeals of 2012, particularly civil appeals.
Stay of proceedings: Usually, once party appeals on a major interlocutory point, particularly jurisdiction of the Trial Court, application for stay is a necessary consequence.
Frivolous adjournments: My Lord, my client is indisposed, I want an adjournment; My Lord, I am (counsel) fairly indisposed. I come to court in due respect to your lordship. I am not in a position to go on. I want an adjournment; My Lord, my lawyer is involved in a matter in another court, please grant me an adjournment etc.
Petition of trial judges: It is increasingly becoming the fashion of some lawyers and their clients to petition trial judges for one flimsy excuse or the other. After all, it is a case of likelihood of bias even when there is no indication of any likelihood of bias on the part of the presiding judge. The real intention being to have matters transferred to another judge with the consequences of beginning again.
Petition against opposing counsel: Nowadays, either because you don’t like the face of the opposing counsel or you just want to deliberately intimidate and/or blackmail the opposing Counsel, Barristers now write petitions to the Legal Practitioners Disciplinary Committee. The real intention is to chase the opposing counsel out of the case rather than any act of infringements on the Rules of Code of Conduct of the Legal Practitioners.
Attitude of the Practitioners – the Judges
Negative attitude to innovations: Recall suggestions on appointment/secondment of legal officers to Judges.
Lack of technology to proceedings: Some Judges want to be the master of their records by deciding what to write and what not to write.
Late sittings/not sitting at all: There are judges that sit at 10:00 am or 11:00 am habitually even though the official sitting period is 9:00 am. To make matters worse, some will not even bother to apologise to the Bar. I have heard and experienced of where a Judge sat at about 11:00 am and the next thing he said was “Registrar call the first case” (complete the story)
Lack of proper apprehension and/or political will to enforce the application of the Rules of Procedure, such as: a.) Personal liability of counsel for cost; b.) Award of cost.
It is not strange to still hear Barristers arguing in court that award of cost is not intended to be punitive forgetting that the present principle underscoring the award of cost for frivolous adjournments and other infractions of the Rules and procedure on the part of clients and their counsel is that of the principle of indemnity and full compensation for time and effort. The point being made here is that we cannot continue to do the same thing in the same way and expect a different result.
Allegation of Corruption
In the past Judges were seen as Caesar’s wife living above board. According to Chief Wole Olaonipekun SAN, past president of Nigerian Bar Association,”It was very unusual in the past, in fact a taboo to accuse a judge of corruption. In a research done some years ago in respect of British judges, it was found out that whereas the Judiciary of Britain is several centuries old, only one allegation of corruption was made against a judge and same was proven to be frivolous when investigated. Today, we live in the unimaginable situation of the National Judicial Council (NJC) applying the big stick of dismissing some of our judges, suspending some and admonishing others for proven case of corruption.”
The general perception today is that the judiciary of Nigeria is corrupt. It is on record that some Judges in this country are standing trial for one form of criminal allegation or the other.
Very recently, in a publication titled: Senate Leader accuses wealthy Nigerians of buying Court Judgments, the Senate leader of the 8th National Assembly had this to say at a plenary session: ”Ours is a society where people who have so much money buy judgments.”
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