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Judges conference 2021: impunity, mendacity, truth and way forward

By Malcolm Emokiniovo Omirhobo
25 January 2022   |   2:46 am
I have painstakingly read the addresses of Honourable Dr. Justice I.T Muhammad, the Chief Justice of Nigeria (CJN) and Chairman of the National Judicial Council

Malcolm Omirhobo

I have painstakingly read the addresses of Honourable Dr. Justice I.T Muhammad, the Chief Justice of Nigeria (CJN) and Chairman of the National Judicial Council (NJC) and President Muhammadu Buhari represented by Vice President Yemi Osinbajo (SAN) at the just concluded 2021 Biennial All Nigerian Judges Conference. To a large extent, I find them to be self-serving, misinformative and hypocritical.

On Monday, November 15, 2021, I had two public interest cases at the Federal High Court, Abuja for which I was issued hearing notices. The counsel representing me went to court prepared only to be told by the registrar that both cases were not going on because of the all judges conference, which commenced the same day. On Tuesday and Wednesday, four pro-bono cases at the Lagos State High did not also go on for some reason.

Despite the ample time in its hands to plan ahead for the conference, the courts were not courteous enough to notify lawyers and the Nigerian public that they will not be sitting. The courts have my phone number and email address to notify me that my cases were not going on but refused to do so out of what I consider to be sheer impunity. The unnecessary waste of time, expenses, pain and agony I suffered without the judiciary batting an eyelid out of impunity is what thousands of Nigerians suffered throughout the just-concluded all judges conference. This omission on the part of the courts, I must say is inexcusable.

In the president’s address, his assertion that it is imperative for the judiciary to be free from all forms of interference while maintaining a high level of responsiveness, professional standards and integrity are no doubt true. But I ask how possible is this with an executive arm of government that has dragged the rule of law in the mud, destroying virtually all mechanism, process, institution, practice, code or norm that supports the equality of all Nigerian citizens before the law?

In truth, the president’s efforts to ensure that the judiciary is well funded is commendable but I ask of what use is a spineless financially strong judiciary occasioned by an executive arm of government with impunity that refuses to obey court orders and condescends so low as to bullying, harassing, attacking, coercing and intimidating judges? The 2016 raid on the homes of some senior Nigerian judges via a sting operation by the Department of State Service (DSS), the illegal and unlawful removal from office in 2019 of a sitting Chief Justice of Nigeria via a motion ex parte with the active support of the National Judicial Council (NJC) and the Federal Judicial Service Commission (FJSC) and the attack on Mary Ukaego Odili, Honourable justice of the Supreme Court of Nigeria, residence by security agents are good examples of the affront and incursion on the independence of the judiciary by the executive arm of government.

The last time I checked, this government has disobeyed over 51 Court Orders. The Government picks and chooses which court order to obey and this leaves the public with the perception that court orders against the government are worthless and useless and that government officials are above the law

In view of the foregoing, I dare ask again whether it is not hypocritical and ludicrous for a government of absurdity and arbitrariness typical of despotism, absolutism, authoritarianism, and totalitarianism to claim to fight for the independence of the judiciary?

The president was right in praising the leadership of the judiciary for taking a proactive stance to tackle the menace of conflicting orders handed down by courts of coordinated jurisdictions. But I ask, how does that impact the common man because the cases referred to are political cases and cases of the high and mighty, not the regular everyday cacophony of orders and judgements, characteristic of the Nigerian judiciary which goes unnoticed.

The president praising the CJN for revolutionising the process of selection and appointment of Judges without details or proper explanation, makes no sense. Today, it is an open secret that appointment to the bench is to a large extent not based on merit but political and other extraneous considerations. If you want to be a judge, you must know somebody or somebody who knows somebody. No wonder we may never again have the likes of Chukwudifu Oputa, Chukwunweike Idigbe, Anthony Aniagolu, Kayode Eso, Ayo Gabriel Irikefe, Augustine Nnamani, Justice Victor Ovie-Whiskey, Samson Odemwingie Uwaifo, Michael Ekundayo Ogundare, Idris Legbo Kutigi, etc in the bench anymore.

The Justices just mentioned were some of the great men of high intellectual capacity who held their own fearlessly with their integrity intact throughout the military rule in Nigeria. Small wonder why today in fairness to a very few fine judicial officers, we have many square pegs in round holes in the bench who have no business being there at all in the first place. Small wonder why we now have judges who adjourn ruling for simple motion exparte for an order for substituted service after several adjournments.

Small wonder why we now have judges who lack discretion. Judges that do not have the mind of their own, so lily livered and afraid to make orders because it involves the executive, a big shot or a powerful group. Without mincing words, I dare say that the reason for executive impunity, rascality and recklessness in Nigeria today is the shy, timorous and comprehensively cowed Nigerian Judiciary. Majority of our judges find it impossible to interpret the Nigerian constitution when it involves the executive and it’s agencies, especially the Military. Many Nigerian judges will either go technical or ensure that they dodge, delay or frustrate cases on the interpretation of the constitution especially public interest litigations until they become nugatory, overtaken by events or at best become an academic exercise.

In his address, the President recalled that in 2019 when he addressed the gathering of judges, he stressed the need for the implementation of measures that will ensure speedy dispensation of justice in the country through the dual-track of removing administrative bottlenecks in the judicial process and adopting modern time-saving technology. Without being pretentious, I make bold to say that nothing has significantly changed since then and that the bottlenecks are still there. To crown it, the judiciary like every other public institution in Nigeria have neglected to wholeheartedly embrace technology because of its cost implication, lack of willpower, impunity and corruption.

Talking about the COVID-19 pandemic, it is true as pointed out by the president that the courts in several jurisdictions issued Practice Directions for the conduct of court proceedings and that there was remote hearing of cases by virtual means. But I ask to what end is that when the very few cases heard were selected political and high profile cases that concerns the high and mighty at the Supreme Court and Court of Appeal level.

During the COVID-19 pandemic, virtually all of our High Courts and other courts of coordinate jurisdictions, magistrate courts, Sharia courts and customary courts, the judicial turf of the common man were under lock and key.

The electronic filing of court processes, service of hearing notices via email addresses and mobile phone numbers of counsel, and e-payment of filing fees are not new to the Nigerian courts.

In fact, technology has been introduced to the Nigerian judiciary over two decades ago with much fanfare and funding and has since then been on the front burner but regrettably and unfortunately, apart from the e- payment that is used by the government to collect revenue the others are seldomly used.

Imagine, during the Biennial All Nigerian Judges Conference 2021, the courts could not pass simple information through text message and email to lawyers that their cases will not be going on. Consequently, practically, all the State High Courts and Federal Capital Territory (FCT) High Courts numbering about 1,299, the Federal High Courts numbering about 76, the National Industrial Courts numbering about 31, Sharia Court of Appeal and Customary Court of Appeal at the States and FCT, Court of Appeal numbering about 72 and Supreme Court of Nigeria was abruptly shut down.

Similar scenario played out during the last NBA conference not to mention the ridicule, frustration and humiliation lawyers and the public are made to suffer in the hands of security operatives as a result of the Federal High Court, Abuja neglect with impunity to notify them that their cases are not going on, on the days scheduled for the hearing of Nnamdi Kanu’s case. The simple use of email or text messages would have averted these ugly situations.

The claim that relevant devices were installed to achieve e-court proceedings is not true. On this note, I am respectfully asking the Presidency and Judiciary to provide the returns on cases heard and evidence of the installation of the devices in courts during the COVID-19 pandemic.

To be candid, our courts are still very much congested because the judiciary like other institutions in Nigeria, has refused to accept and apply technology. Lawyers cannot in the comfort of their offices file court processes like lawyers do in cases at the ECOWAS Court. They must be physically present in court under excruciating conditions to make e-payment and file e-court processes. Except in Lagos where e-filing is made compulsory in virtually all parts of Nigeria, the filing of court processes are still to a very large extent done manually. Worrying too is the fact that the travel time to-and-from the court for litigants, counsel and witnesses is still a big issue.

It is most unfair for the president to heap all blame on lawyers for delay of court proceedings without apportioning the share of the blame to the bench. At the end of the bar, there is the deterrent of the cost award system, which is not there for the bench which gives birth to impunity. Some judges hardly sit. They select the cases they want to hear and the days and times they want to sit. Now tell me what happens where a judge delays proceedings or refuses to work for his pay? Where is the deterrent? None! How are the litigants and lawyers recompensed? None!

The President talked about
Nigeria is part of the global marketplace for investment and legal services and the need for the quality of our justice delivery system to be seen as efficient and effective so as not to lose out to more efficient systems without addressing the issue of insecurity. Or is it not in Nigeria that judges are being kidnapped for ransom? Is it not in Nigeria that a substantive chief judge of a state was prevented from sitting by security operatives and nothing happened? Is the President not referring to a Nigeria that is 99 per cent failed, where judges are being bullied by the executive and cannot sleep with their two eyes closed?

Looking at the CJN’s address, of a truth, he was right that the speedy and thorough determination of the questions placed before the court helped ensure the stability of Nigeria, its democratic values and practices, and ultimately it’s future. Of a truth, the CJN was right when he asserted that judges must rise to the challenge and restore public confidence in their ability to dispense justice without fear or favour in line with their knowledge and understanding of the law, and the highest dictates of their conscience. Of a truth as pointed out by the CJN, corruption in the Judiciary due to the activities of some bad eggs amongst Judicial officers must be rid of.

Of a truth, the CJN was dead right when he admonished judicial officers to desist from giving incessant ex-parte orders that have portrayed the judicial system in a bad light and the need for judges to rise to the challenge to restore public confidence in the judicial system.

Of a truth, the CJN was correct when he urged judicial officers to realize that stringent application of procedural rules and technicalities that do not lead to the attainment of substantial justice and must therefore do substantive justice through the rigorous application of the law as it is and not as they perceive it to be.

Of a truth, the CJN was right in his confession that Nigerians are not entirely satisfied with the performance of the judiciary. Of a truth, the CJN was right in his assertion that it may be difficult for the Judiciary to be impartial and objective in a democracy where it remains financially tied to the executive and that it is trite that the foundation of impartiality is independence.

Truth aside, with all humility, I say it is mendacious for the CJN to assert that the Judiciary performed credibly well exhibited considerable patriotism to the Nigerian State and served their motherland to the best of their ability during the coronavirus pandemic. I am saying this with all due respect because practically all the courts were shut down during this period except for a very few that took up the political case and those that they have an interest in. The majority of the High Courts and other courts of coordinate jurisdiction and inferior courts of record were shut down.

Unlike the superior courts of record that faintly and half-heartedly applied virtual hearings or e- sitting, the lower courts in entire Nigeria were not afforded e-system facilities. Or are these courts not part of the Nigerian judiciary? With utmost respect, I ask the Judiciary to publish the returns of judges and magistrates during the Coronavirus pandemic. To this end, I say that the judiciary failed the public who are its primary constituents and assessors when it matters most given the enormous resources, time and energy that have been put in to make the Nigerian judiciary technologically compliant.

It is mendacious for the CJN to compare the Nigerian judiciary that has neglected to embrace technology with the Judiciaries in the Commonwealth in particular and those democracies in general that are well advanced in the e-system of administering and dispensing justice. The burdened, encumbered, inundated and over-stretched political cases and disputations of the Nigerian Judiciary are self-inflicting and so the Honourable CJN cannot be heard to complain.

Respectfully, it is mendacious for the CJN to posit that Nigerians perception of the judiciary as inefficient, slow and at times tainted is erroneous. Lets call a spade a spade, impunity remains the bane of the Nigerian judiciary. Our judicial officers entrusted with judicial powers and authority by virtue of Section 6(6) of the 1999 Constitution (As amended) abuse the powers because they are sure that nobody can or would hold them accountable. I have severally flown from Lagos to Abuja and lodged in hotels for public interest matters for which I have been given hearing notices only to get to court and be informed that the court is not sitting and that I should take a date. The disappointment of traveling from far and near to court only to take dates is not peculiar to me but to many hapless and helpless Nigerian litigants and lawyers who recline to faith. A good number of judges come to court late and start sitting without any explanation or apologies. Many Nigerians come to court praying for their matter to be heard because the registrar may from the blues announce that the court is not holding because the judge is sitting outside the jurisdiction, attending a conference or seminar or for no reason at all. A good number of judges without courtesy sit and rise anytime they like without any explanation to the disdain of the public. Sometimes, midway into the cause list, they rise and disappear to their chambers pretending to be busy and will not return to continue sitting and thereby forcing litigants and lawyers to take dates. Some judges pick and choose the cases they want to hear and ask others to take dates. Some judges do not read their files to find out the cases that are urgent. They leave the task to the registrar and clerks who are not trained for the job and just don’t care. Imagine I filed a public interest case on the Nigerian Army involvement in the unlawful killings of peaceful END SARS protesters at the Lekki Tollgate in October 2020 with an affidavit of urgency it did not come up until November 2021 a year after for the first time despite the fact that I wrote the judge whom the case was assigned to. This cannot happen in the good old days. Once a case is filed with an affidavit of urgency without any consideration, the motion experts are heard and taken within three days depending on how the applicant follows his case, his application could be heard the same day but this is not the case today because of judicial impunity. We always complain of executive and legislative impunity but fail to complain of judicial impunity which is far more dangerous and has a more damning effect on our democracy.

Going forward, the right people must be appointed to the bench. Appointment must be based on merit, not business, family or political ties or connections.

The NJC and FJSC must be reconstituted, repositioned and strengthened for the effective discharge of their statutory mandates. The returns of judges must be well monitored, examined and assessed, by the appropriate authorities for reward, promotional and emotional purposes. This will keep lazy judges on their toes.

The judiciary must embrace technology with its heart not lips. Many judges still prefer writing in long hands instead of the system because they want to cover up their impunity and corrupt practices. In this wise, bodies must be set up for the monitoring and enforcement of the use of the e-system by judges.

Members of the public and the Nigerian Bar have a very important role to play in the building of a viable, effective and efficient judiciary. They must not fail to complain to the appropriate authority when a member of the bench misconduct himself. It is not an act of disrespect or sacrilegious to report an erring judicial officer for unethical misconduct. Without the lodgement of complaints against erring judicial officers, there will be nothing for the NJC to act on.

The judiciary must learn to fight for itself using its inherent powers when necessary. The judiciary must take its destiny into its hands by realising that its funding is constitutional, desirable, crucial, vital, and imperative. The judiciary must stop seeing itself as a beggar. The judiciary must realise that the funding of judiciary globally is centered on the judiciaries ability to hold their own. In that light, I really do not subscribe to the CJN celebrating the President, JUSUN and the Governors Forum in ensuring that the judiciary gets what is due to it.

A judiciary with impunity can never be effective and efficient no matter how well funded and independent it may be because impunity is the bedrock of corruption. A judiciary infested with impunity cannot allow for the entrenchment of rule of law and thus can never be the hope of the common man. To successfully promote judicial excellence in the Administration of Justice in Nigeria, the Judiciary must get off its high horse and must always be above board.

Omirhobo is a Lagos based human rights lawyer