CJN should support agitation for judicial independence, says Ezike
JAMES EZIKE is a constitutional and commercial lawyer. In this interview with BERTRAM NWANNEKANMA, he wants the Chief Justice of Nigeria and the Nigerian Bar Association (NBA) to lead the agitation for financial autonomy for the country’s judicial arm of government, rather than working to stop the demand by the Judiciary Staff Union of Nigeria (JUSUN) for judiciary independence.
The Nigerian Judiciary used to be a strong catalyst for sustenance of democracy, can we still say the same today?
A famous English judge said that not all changes are reform. The judiciary should reform itself. The independence of the judiciary is one thing but reform is another.
All that they have done all the years are changes not reforms, creating more judicial divisions, use of computerised this and that are not reforms but changes. They have not made any reforms, what we mean by reform is that if the judiciary is reformed, it would not really matter whether you use computers or you have many branches. Like, I used to tell people, creating more and more judiciary branches is not the solution. To tell you how much the judiciary is cheated, the court of appeal in various states were built by states governments and handed over to the judiciary. Can you imagine that, some judges survived because they are posted to a certain state and the governor of that state allocates some land to them, and they sell it and have some money in their pockets?
It is not the number of branches of the courts of appeal you have, or the Federal High courts you have that determines the efficacy, it is the reform. For instance, in Nigeria, no plaintiff wins a case involving money unless it is a bank and no defendant loses a case involving money. A plaintiff never wins when money is involved unless it is a bank because what the defendant has to do is to keep appealing.
What I called reform is the recognition by the court itself about changes. There is a famous judgment of Justice C. C. Nweze, delivered when he was in the court of appeal, where he said that the judgment of court is not numerical; that is to say, it is not based on mathematical figures. I will expect and has expected that by now there would be seminars in various universities because to me, it is the greatest judicial pronouncement by a judge. It is actually his way of saying what a famous American judge, Oliver Wendell Holmes said, that the basis of law is not logic but experience. They should hold seminars and use it to guide our judgments. The previous judges tried.
When Buhari came to power in 1983, there was massive inflation; there was this case involving Margaret Stitch, who brought in used Mercedes Benz cars and refused to pay the duty that was imposed, saying it was not what it was when she imported the car but by the time the vessel that brought the cars to Nigeria came, they had increased the tariff. She went to court and lost in the high court and court of appeal but won in the Supreme Court. When she got to the Supreme Court, the apex court ordered that she should be paid the current value of the car in 1986. The Supreme Court said she should be awarded the value as of now; they underlined the word now at the time of the Supreme Court judgment. Justice Kayode Eso said the value of that vehicle she was claiming is not even enough to buy a spare part of it, let them revalue it in 1988.
Justice Oputa did a similar thing in a case that was filed in 1974. A man bought 11 plots of land in Onitsha from a family in 1960s and was paying them in installments. He went to court in 1974 and demanded they give him 11 plots or give him the amount of money that the land was worth at the time; he filed the suit in 1974, which was about N4, 000. By the time, they reached the Supreme Court in 1988, the apex court sent the case back to the high court and demanded the administrative judge find the current market value in 1988 and pay it to him in addition to paying him the money deposited in the court.
These are the type of reforms I am talking about. Why is it that the courts are congested? There are reforms for it. In other climes, if you are a defendant and there are chances that you will lose and money is involved particularly in North America, you don’t allow the case to go to trial, that is why you have 95 per cent of the cases filed in Canada settled out of court and 99 per cent settled out of court in America when money is involved. Because if you lose a civil case, if it is a company, it must wound up. In Nigeria, how many? There is no temptation.
Court proceedings and commercial activities within court premises have been grounded in the last three weeks as a result of strike by the Judiciary Staff Union of Nigeria. How do you react to this development as a major stakeholder?
I am totally embarrassed by the reaction of the Chief Justice of Nigeria (CJN) to the strike that he was trying to intervene. Intervene for what? The judiciary should be leading the strike. I have said it over the years that in England because the Chief Justice then, Justice Geoffrey Dawson Lane, was a corrupt man and the judiciary was corrupt in England, he took sides with the Parliament because he thought the Parliament would win and they did, as a result of which the independence of the judiciary was lost. Up till today in England, any decision made by the highest court in England, which is now known as the Supreme court can be changed by the Parliament because they surrendered their sovereignty to the Parliament. There are certain decisions, they took, the most notorious was the Burmah Oil case, and they decided that the government pays compensation to victims of the Burmah Oil Company, the Parliament decided otherwise. Not that they passed a law against the decision but they sat on appeal on it. Because they surrendered their independence, their judiciary has been fighting to regain that independence. It will appear that they have finally succeeded after the 2008 judgment in the Sempra Metals Limited case but we shall see what the Parliament will do next.
In the case of Nigeria, the independence of the three arms of government is guaranteed in the constitution. The three are both equal as they said but what has our judiciary done? They surrendered their independence to the executive. In Pakistan, another Commonwealth country, the same with India, it is judiciary at a time that actually started demonstrating against interference, they were marching the streets. What the CJN should do is to support the agitation for judicial independence, then the Nigerian Bar Association (NBA) should tell the lawyers to join and they would be marching the streets because it is guaranteed in the Constitution.
How has lack of judicial independence affected our judges?
The judges are supposed to be the best brains we have in matters of law and they should be properly and adequately compensated. The question of corruption because a judge cannot find money to take care of basic needs would never arise. Like, I said before, these judges are our friends and relations and we know the hell they are going through. They are not supposed to go through that, there is no reason why the Senate president or the President or any body should earn more than a judge. In the United States, even the Supreme Court returned money they did not spend to the treasury every year and they still ask for more and get it. The worse experience the judiciary ever had was with the military, particularly during General Ibrahim Babangida’s regime. They went through hell and were impoverished. The courts were totally neglected. They were humiliated, they could not ever sit and cases continued to accumulate. Yes, I know that cases will continue to accumulate, let them continue the strike, let the judiciary support them and let the lawyers also back them up. If the executive holds their money at any time, they should do their budget and submit to the parliament. If they refuse, they should go to court and they will be the one to determine it.
When Tony Blair was the Prime Minister of Britain, he wanted to reduce the salaries of judges, the judges said no problem, and if you reduced our salaries we will go back to our practice. Mark you, in England; you could not become a judge unless you are a Queen’s Counsel (QS). In fact, it is the best of the Queen’s Counsel, the most brilliant of them, who become judges and of course they were earning very well in their chambers.
But in Nigeria, we have fictions, which say that if you are a judge and retires, you can’t go back to practice. Where did we learn some of these things? Like, I said, judges should join the strike; we were told that it is below them. I don’t know where they are learning these things. They are human beings, they have rights in the same wise, and it is wrong what is going on in Nigeria.
You’re saying the strike should continue?
The strike should continue until the parliament and the executive are made to agree with the position of the Constitution.
It should continue until they agreed that the judiciary should submit their budget, just like the executive and it is approved. Let us not forget that we have what is called accountant general. So the question of money being stolen is not possible. If any thing goes wrong, of course the chief judge or the administrator will be in trouble. The court requires a lot in terms of equipment and planning. Why some people want to attain the rank of senior advocate in Nigeria is for their cases to be heard early in court. But it is unnecessary. When Justice Oguntade was in the High Court, there was no advantage whether you are a senior advocate or not because he does not give you a date to come and wait. He will give you time for your case. That is what it should be. These are the type of reforms we should insist on. We have so many things we have to change. I remembered that Prof. Ben Nwabueze said something, which some judges and lawyers still misunderstood. During the last election petition where the CJN announced that they have already decided certain things in chambers, Prof. Nwabueze complained but the lawyers did not understand what he was saying. The truth is that your arguments should come up in the courts and the decisions should come only after. We are now at a stage where you go to court and the judge will tell you, adopt your brief, instead of arguing it. In the past it was not like that.
The AGF recently said the Federal Government would soon unveil an enhanced salary package and conditions of service for judges in the country. What are your expectations?
I don’t know what he means by that but if he means by it that they will now restore judicial independence, I do agree that he should go ahead. I hope it is also limited to it. The issue is that it is for the judiciary to say what its budget would be and submit it like the executive and the legislature submits and it will be debated and approved. Their own is usually not doubted. The Accountant General of the federation should also be in charge of auditing everybody. In any event, it is for the registrars to administer but the question of judges being in want as they have been over the years should not be allowed to continue. They die in penury after retirement.
Why is government finding it difficult to implement even after the issue has gone through the courts and there is end a judgment in favour of the judiciary?
It is the reason why I am saying that the judiciary should support the strike. If the judiciary supports this strike, then the members of the legislature will know that when they have a problem there is nothing they can do to antagonise the judiciary. Let me dramatise this point, there was a client of mine, Olusola Saraki, father of the immediate past Senate president, he wanted to be president and I was doing some cases for him. One day, he invited me to his house in Ikoyi and told me that one of the reasons why he wanted to be president was his experience after the Buhari coup, whereby he was detained in prison for no reason, never interrogated and of course was not jailed and for the first time, he found how important the judiciary was. That as the senate leader, whenever the budget of the judiciary came up, he will simply say approve without thinking. He now knows how important the judiciary was.
It was the judiciary that would have sent them out of that prison if they were taken care of and some of those things would not have happened. So many members of the legislature do not know how important the judiciary is and it is in their own interest especially, the good ones.
I never also forgot that when this Buhari was petitioning against Obasanjo in 2004, I was the counsel of Ojukwu, who was also challenging that election and midway to the trial because the trial took place at the court of appeal, Afe Babalola was reported in various Nigerian Newspapers to have taken the judges including the ones doing the case to the president.
When people protested, it was explained by Afe Babalola that the reason they went there is that they needed the president to provide the money to ensure that the Court of Appeal infrastructure was finished because the permanent site of Court of Appeal was at that time abandoned. Does this tell you the real problem? First of all, is it not scandalous that people who were hearing a petition against the president went to beg him to build a court for the judges? Secondly, if they were independent, will they be going there? Will they be going to the president for what should be done? Buhari didn’t learn from his experience. I have met Buhari a total of seven times, from the time he was a minister of petroleum to the time, he was a presidential candidate and I understand him.
So you find the President himself complicit?
Why does he have to sign an executive order? He keeps the money; give the money to the judiciary. Signing an executive order to give me $20 million does not mean anything. If you owe me, you should pay me. This executive order thing has assumed the life of its own under Buhari’s administration. Under Obasanjo, it was limited. There is always a thin line between making law by the executive and implementing a law. The question is let the judges be given their money thereafter they will be in a position to reform the judiciary. The only thing that can save this country is the judiciary. If the judiciary is not saved now, this country must surely die because the other branches are finished.
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