OUTSIDE THE BOX
By Alex Otti; email@example.com
“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organised conspiracy to oppress, rob and degrade them, neither persons nor property will be safe”. Frederick Douglass (1818-1895)
Muritala Nyako, 75, former Naval Chief, retired as a Vice Admiral in 1993. He won the Governorship election for Adamawa State under the PDP and was sworn in on May 29, 2007. He was removed a year later by the election appeals tribunal and had to face a fresh election in 2008. He won the election again, this time with a landslide and took back his office on April 29, 2008. After surviving impeachment threats, he ran for a second term of office and won yet again. On July 15, 2014, however, the State House of Assembly impeached him.
There was strong suspicion that Nyako’s impeachment was masterminded by the Jonathan Presidency. This was because he was one of the five governors that decamped from the PDP to the APC in the heat of the disagreement between Jonathan and some Governors. Many people believe this was one of the factors that ultimately brought down the Jonathan administration. The battle with Jonathan was launched under the auspices of the Governors’ Forum led by the then Governor of Rivers State and current Minister of Transport, Rotimi Amaechi. The fight got to such a distasteful level that after Amaechi won his reelection as the Chairman of the forum, Jonah Jang, who scored 16 votes as against Amaechi’s 19, was recognised by Jonathan. The rest, like they say, is now history.
Following his impeachment, Nyako headed to court and on February 11, 2016, the Court of Appeal declared it illegal, null and void and of no effect. The Court, however, declined Nyako’s prayer to be reinstated as Governor, but ruled that all his entitlements and emoluments be paid to him. This judgement was upheld by the Supreme Court on December 16, 2016.
The issue of interest here is that Nyako eventually got justice, but the justice came too little too late. By the time the Supreme Court judgement came, more than two years after his impeachment, a new Administration had spent about 18 months in power. I can imagine that Nyako would have wondered what manner of justice he got. He would have been concerned that even though the Courts agreed that his impeachment was wrong, he could not be reinstated to the position that was unlawfully taken away from him. It is instructive that judgement was actually delivered on this matter very quickly, given the record of the judiciary in Nigeria. Some matters spend more than10 years in courts such that by the time ‘judgment’ is given, justice would not only have been denied, but indeed, injustice would have been delivered instead. Some matters have been decided several years after the plaintiff or appellant had died, thereby making the reliefs granted totally meaningless and unenforceable.
The judiciary in Nigeria has all sorts of issues: from the self-inflicted to the system-induced. Rampant cases of corruption have been brought to the fore. I’m glad that this matter is finally receiving a lot of attention under the current Chief Justice of the Federation, Justice Walter Onnoghen. We have seen more reprimand and punishment of erring judges in recent times than any other time in our history. We can only encourage the judiciary not to relent in its efforts at sanitizing the system. It is very scary for litigants to believe that the only way they can get justice is to pay for it. It is even scarier for citizens to be convinced that the system is organised in such a manner that irrespective of the merit of their cases, judgement is determined solely by their ability, or lack thereof, to buy it. A society that cannot rely on its judiciary for justice is doomed. As it is said, the judiciary is the last hope of the common man. The legislature and the executive can misbehave. Where they do, the judiciary is expected to weigh in and call them to order. Of course, the citizens can exercise their right to vote them out in the next election season. This is not the case with the judiciary. It therefore places a lot of burden on the body which is expected to self-regulate.
A major problem with the Judiciary in Nigeria is structural. The structure is like a funnel, a pyramid, where, at the lower level, there are thousands of high courts which include state high courts, federal high courts, and customary courts. When matters are concluded at these lower courts, they move to the next level which is the appeal court. The funnel gets tighter at this level as there are only 17 divisions of the court of appeal in the whole country and a few customary courts of appeal. I may not have the statistics but my sense is that half of the cases heard at the lower courts proceed to the court of appeal. From the 17 appeal court divisions, matters move to the narrowest part of the funnel, the Supreme Court and there is just one in the whole country with no more than 21 Judges to serve over 180 million people. This is where the bottleneck manifests itself glaringly. No matter how we wish to explain it, this structure is obviously not working and indeed, cannot work. I am aware that even in the US, from where we copied our current style of democracy, states do have their own Supreme Courts. At the minimum, that is what one should expect in Nigeria. During election seasons, election petitions must, statutorily, be heard within a specified time period. The Supreme Court literally shuts down other matters to hear and decide election petitions brought before it, just to ensure that they are not time barred. At such periods, the Supreme Court sits till very late at night and sometimes at weekends. Of course, it won’t be out of place to expect that fatigue could set in and may actually affect the quality of output from the court.
The physical environment in which the judges operate is another obvious obstacle to justice. The judiciary in Nigeria is the only sector that doesn’t seem to be moving with the times. When one enters a typical court in Nigeria, one is often greeted by heaps of poorly-kept files that would discourage anyone looking for information. In some cases, such files are in such a terrible state that retrieving documents from them becomes a nightmare. The judges themselves are also made to write their notes in long hand and sometimes, they deliver hand written judgements. The question is; what has happened to computerisation? Can’t the judiciary help itself by migrating to an automated environment as has been done in other parts of the world? In fact, there are instances where the courts reject electronic evidence, insisting on manual ones, in spite of the fact that the society has become increasingly virtual in many respects. One may then ask; is it not within the control of the judiciary itself not to reject technology?
At the heart of some of the problems of the judiciary is funding. From the states to the federal government, the judiciary is obviously poorly funded. Some states have court rooms that are not air conditioned, not properly furnished and have little or no work tools. Some of them do not have electricity most of the time nor can they afford alternative energy sources. Some judges live under very terrible conditions and can hardly afford basic minimum standards of living. These appalling conditions have been fingered as major reasons for corruption in the sector.
Funding, on the part of litigants is also a hindrance to justice delivery. Litigation, anywhere in the world is expensive and it is more so in Nigeria. Given the inefficiencies that are associated with our society, it is axiomatic that majority of the populace cannot afford to hire and sustain a lawyer’s interest in a case, no matter how meritorious. The government which is supposed to provide legal services to those who can’t afford it, is struggling to pay even basic salaries. When such people are confronted with this reality, they would rather surrender their matter to God or inevitably resort to self-help.
The Bar and the Bench are known to respect seniority sometimes to ridiculous levels. A friend of mine, went back to read Law at old age, after working in the financial services industry for close to two decades. His experience in a Lagos high courts is very interesting and revealing. He was representing someone who had been awaiting trial for several years. After a lot of efforts, he was able to secure a date for the matter to be heard. He prepared the best he could and was at the court very early. To his surprise, just before his case was called up, a SAN showed up for a matter which was supposed to be one of the last on the cause list for that day. Once the Judge noticed him, he called for his own matter, in the tradition of deference to seniority. The SAN’s case took the rest of the day. By the time he was through, the Judge rose for the day. He was directed to the court registrar to get another date. The judge’s calendar was so full that the next available date was a clear seven weeks from that day. What a frustration, but what could the poor ‘baby lawyer’ do?
Some counsels choose to deliberately frustrate justice. There is the penchant to seek adjournments and file seemingly endless interlocutory appeals. Some of these appeals are designed specifically to frustrate a case by buying unmerited time. A matter at the lower court, for instance, could be stalled for years, trying to resolve an interlocutory appeal which may get up to the Supreme Court before returning to the lower court for the actual matter to be heard. It is the opinion of another lawyer friend of mine that interlocutory appeals should be banned outrightly as they are known not to serve the cause of justice. Still on appeals, the law allows appellants 90 days to appeal a civil matter. I am constrained to ask whether it is not possible to reduce this period to say 14-21 days? Some matters that make it to the appeal courts and sometimes the Supreme Court, in my opinion, do not have any business in those appellate courts. Some of them, I believe, are designed to waste time while others are designed to ensure that a beneficiary of judgement at lower levels does not enjoy the benefits of such judgment and even if they have to, it would be at a great cost and inconvenience. I must confess that I do not have the answer presently, but is there no way some identified matters could be made by law to end at the lower courts? Sometimes, one reads about some mundane and inconsequential matters being determined at appellate courts. The Bar has also not helped in this. In fact, one is aware of cases in courts that should have been handled at the Alternative Dispute Resolution window. There is this saying that if you want to settle a matter amicably, do not speak to a lawyer. This is because once you seek the opinion of a lawyer on any matter, his response would always most likely be, “let’s sue the bastards”.
Closely related to the issue of time allowed for appeal is the rule that allows a respondent/defendant who lives in the area of domicile of the court, up to 42 days to respond to summons. It is my contention that this is too indulgent and significantly adds to delivery of injustice to litigants.
On the part of the Bench, there are cases of judges contributing to the delay in dispensation of justice by granting unjustifiable adjournments, either because they were not prepared to hear the cases or that they may have vested interests and therefore place themselves in conflict. There are also cases of courts of coordinate jurisdiction giving conflicting judgements on the same matter. This is more rampant at the lower court levels. There was a recent case of a judgement given by a Federal high court against a sitting State Governor. Rather than obey the order, the Governor procured a judgement from the state high court, thereby literally countermanding the Federal High Court order. This is a recipe for chaos and should not be allowed by any decent judicial system. There are also a few cases, where judges have been found to have solicited gratification to miscarry justice. Luckily, the Nigerian Judicial Council (NJC) has been living up to its responsibilities and has continued to deal with such matters whenever they are brought to its attention. The challenge, however, remains where the victims do not have the courage nor evidence to report.
Finally, the method of appointment of judges needs to be seriously reviewed. This is one profession where network and contacts play crucial roles. Any practitioner whose parents or relatives are respected in the profession seems to automatically benefit from that tie. This may appear to be true of both the Bench and the Bar. It is my contention that competence and merit should play more significant roles in matters of justice than family or blood ties. The judiciary is also the tier of government that should be truly independent. That independence, to my mind, is impinged by the fact that the executive arm of government currently wields a lot of influence on the Judiciary. Appointments are made by the executive arms of government, with some input from the legislature. How can we then guarantee genuine independence of the judiciary? A lot of times, against the genuine intention of the Judiciary, the relationship with the executive poses a challenge to its independence and hence leads to the delivery of injustice in the final analysis.
To ensure that we build a just, fair and egalitarian society where any individual, whether big or small, can get fair hearing and justice, we must focus on genuine reforms that address the issues raised here and elsewhere. I must reiterate that this is the only way through which we can ensure that justice is truly served the majority of our populace. On the part of the populace itself, it is important that it should also organise itself and demand these reforms knowing that injustice to one is injustice to all.