Nigeria’s judiciary: A Review of the year 2022
The year 2022 tested the Bar and the Bench in their joint commitment to justice, professionalism and defence of the rule of law, in various respects.
Dominating the centre of activities were battles for the welfare of judges and judicial officers, tests of upholding the unity of the bar and challenges of impartial judgment on political matters.
The battle for the welfare of judicial officers was fought on many fronts by all stakeholders in the temple of justice. The legal profession deployed both the judicial process and its lobbying prowess and tactics to canvass judicial independence through ensuring the provision of adequate welfare packages for judges.
For the first time in the country’s history, a Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad, voluntarily resigned from office, citing health reasons. Despite this claim, signs showed that the nation’s apex court was heading toward the brink, and something needed to shift to make that happen.
Justice Muhammad, who took over from Justice Walter Onnoghen under controversial circumstances in early 2019 was faced with allegations of fund mismanagement by his fellow Justices.
In a leaked memo, written to him by 14 justices of the court, led by Justice Olukayode Ariwoola, they complained of poor welfare and lack of transparency in the management of the court’s resources, and that was unprecedented and highly damaging.
Following the memo, stakeholders, including the Nigerian Bar Association (NBA) waded in and urged Justice Muhammad to be accountable and transparent in the management of the judiciary’s funds.
As the pressure was mounting and allegations of corruption gathered momentum, a human rights lawyer, Chief Malcolm Omirhobo wrote a freedom of information letter to the retired Justice, requesting to be furnished within seven days, all documents relating to the income and expenditures of the judiciary from 2019 till date or he sues, as they are public documents.
Expected to face the criticisms and defend his management of the resources of the court in line with the issues raised by his colleagues, Justice Muhammad suddenly announced his exit on “health grounds”.
The resignation of Justice Muhammad paved the way for the next most senior jurist in the apex Court, Justice Ariwoola, who was subsequently sworn in as the acting CJN.
On another front was the battle for the increase of judges’ welfare. On May 23, 2022, a retiring Justice of the Supreme Court of Nigeria (SCN), Justice Ejembi Eko lamented that no Nigerian judge enjoyed a pay rise in the last 14 years.
Justice Eko expressed regret that the issue of non-review of judges’ salary though kept appearing in the resolutions of the yearly conferences of the All Nigerian judges, nothing has been done to remedy the situation.
He said it is more disturbing that no one has a clear idea of who is in dereliction of the constitutional duty to review the remuneration, salaries, and allowances of judicial officers since 2007 when they last enjoyed pay rise.
He was however not alone in raising the alarm on the judges’ condition of service at a public forum, notwithstanding the conservative nature of the judiciary. The incumbent President of the Court of Appeal, Justice Monica Dongban-Mensem, had made a similar call on September 13, 2021.
The bar too didn’t keep quiet, as its members had used every available opportunity to call attention to the issue.
To enforce the increment in the salaries of judicial officers, a Senior Advocate of Nigeria (SAN), Chief Sebastine Hon, filed a case in the National Industrial Court (NIC) to compel the Attorney General of the Federation (AGF), National Assembly and the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), among others, to increase salaries and allowances of judges in the country.
The NIC, sitting in Abuja, in a landmark judgment increased the salaries of judicial officers in the country.
The court, in the judgment that was delivered by Justice Osatohanmwen Obaseki-Osagie, noted that salaries of judges and justices have stagnated for over 14 years.
It held that despite increased workload on judicial officers, they have continued to suffer in penury owing to their “extremely low salaries and allowances”, which the court described as “very embarrassing”.
The court made an order, increasing the salary of the CJN to N10 million, while that of justices of the Supreme Court and President of the Court of Appeal were increased to N9m per month.
Likewise, the court increased the salaries of Court of Appeal Justices, Chief Judges, President of the Industrial Court, Grand Khadis, and President of the Customary Courts to N8m, even as it ordered FG to forthwith, pay N7m to other judges, monthly.
Subsequently, President Muhammadu Buhari approved the immediate implementation of the enhanced salary and welfare scheme for judicial officers nationwide.
However, before the president’s approval, Chairman of the Body of Benchers (BoB), Chief Wole Olanipekun (SAN) revealed that the body had succeeded in getting President Buhari’s commitment to improving the welfare of Judges in the country.
He disclosed that President Buhari had graciously acceded to the request by the Body of Benchers for the upward review of salaries and emolument of Judges in the country.
In the year 2022, the NBA witnessed turbulence in an effort to ensure professionalism and a united bar. The BOB and the NBA were, according to some analysts, locked in a war of supremacy. While the war raged, a new professional association known as the Law Society of Nigeria (LSN) led by a prominent lawyer, Kunle Ogunba (SAN), emerged.
The founders of the LSN had reportedly alleged that the NBA did not care about the welfare of its members, stating that the way the NBA was being run and the choice of its leaders was what led to the formation of the new group.
They reportedly alleged: “There is no premium placed on members and on the welfare of members. The real issue that affects lawyers in the NBA is the independence of the judiciary. The NBA hardly even talks about it; they talk about it passively in their speeches.
“They only like talking about grandeur issues instead of the judiciary’s independence, upon which the legal practice of the lawyer thrives. The thing is that all over the world, they don’t practice one bar association.”
Meanwhile, the NBA on its part is entangled in a battle with BOB. The emergence of an email by Ms. Adekunbi Ogunde, an erstwhile partner in the law firm of the BOB chairman, claiming that her principal, Olanipekun (SAN), has more “influence” with judges across all courts set the tone for the unending battle. Ogunde had written the email, soliciting brief from a firm that had another lawyer handling its matter.
The mail, according to the NBA reads: “I believe that you need a more influential lawyer/law firm to prevent a potential huge pay out to the Rivers State Government and without a doubt, I believe that my law firm, Wole Olanipekun & Co., can help in this regard.
“A quick research about Wole Olanipekun & Co., will show that the law firm is the leading litigation firm that has helped other multinationals in sensitive, highly political matters.
“It will also reveal that the presence of our lead partner, Chief Olanipekun SAN, OFR, in the matter will significantly switch things in favour of SAIPEM.
Although the law firm had consistently denied knowledge of the letter and had affirmed that the writer acted on her own, the NBA president, Yakubu Maikyau (SAN) in a letter called for the BOB chairman to step aside for a proper probe into the matter. Mr. Maikyau had, in the letter, asked, Chief Olanipekun not to preside over the last call to bar ceremonies during which 4,711 new lawyers were admitted into the profession.
His letter was a second of its kind, his predecessor, Mr. Olumide Akpata, having sent similar letter to Chief Olanipekun, requesting that he recuse himself as chairman of BOB. Rule of professional conduct forbids lawyers from soliciting clients already engaged by their colleagues. Chief Olanipekun ignored both calls. As a result, Maikyau boycotted the recent call to the bar of new lawyers presided over by Chief Olanipekun as the BOB chairman.
Reacting to the letter, the BOB faulted what it called the NBA’s use of social media platforms in forwarding sensitive official documents meant for in-house communication among members of the body.
The body in a statement by its Secretary, Daniel Tela, in Abuja explained its position on the letter by the NBA President.
“The body frowned on the use of the social media platform in forwarding sensitive official documents in communication,” he said.
Tela said it was disheartening that Maikyau’s letter had been published on social media before it was received at the BOB headquarters at exactly 9:32 am on Dec. 5, a day before the event.
The statement reads in part: “It is on record that the media, (print and social media) has been agog with the reports regarding the call by the NBA for the Chairman of the Body of Benchers, Chief Wole Olanipekun (SAN), not to preside over the Call to Bar ceremonies.
“This widely circulated call has saturated the media space from Sunday, December 4, 2022 till now.
“At the meeting of the Body of Benchers held on Monday, which notice was given on November 14, the sole item for discussion was the consideration of the report of the screening committee of the Body, preparatory to the Call to Bar ceremonies,” he said.
He said the NBA president’s letter was not ripe for discussion at the time it was received at the secretariat.
The Nigerian judiciary in the year 2022 was also enmeshed in pockets of conflicting political judgments, however, it struggled to wriggle its way out of such embarrassment.
Conflicting court orders were made by different High Courts across the country. Despite severe criticisms by stakeholders in the justice sector including the national leadership of the NBA, the National Judicial Council (NJC), and the ceaseless condemnation by the general public, the practice persists.
For instance, the Federal High Court in Ibadan, Oyo State struck out a suit seeking to nullify the controversial Section 84 (12) of the Electoral Act for want of locus standi. Later, another Federal High Court in Umuahia, Abia State gave judgment nullifying the subsection, without considering the locus standi of the applicant.
Sadly, the same scenario continued in the run-up to the gubernatorial elections in Ekiti and Osun States with conflicting orders being issued here and there over the authentic candidates of the contesting political parties.
Lawyers (including a Senior Advocate of Nigeria) were indicted by an investigating committee of the NBA for being complicit in professional misconduct and engaging in the issuance of conflicting court orders. They are to face the Legal Practitioners Disciplinary Committee (LPDC) for trial, with the specter of serious disciplinary consequences hanging on them like the sword of Damocles.
Thus, on May 11, 2022, the NJC issued new Policy Directions to heads of superior courts nationwide setting out strict rules regarding where political and election-related disputes may be filed. The new policy provides direction on how heads of courts and judges are to handle political and election-related matters before courts of coordinate jurisdiction. This is to prevent waves of conflicting decisions from such courts of coordinate jurisdiction, by limiting where matters seeking similar remedies may be filed.
The policy applies to cases in which the Independent National Electoral Commission (INEC), any political party, or its officers or natural persons are parties. It applies when such parties are “suing or being sued for declaration in relation to any action taken or to compel or restrain any action or omission with respect to the affairs of a political party or any election into a public office”.
It says such suits whose outcome will likely have “effect or compel persons or actions beyond the territorial jurisdiction of any one state” must be filed at the High Court of the Federal Capital Territory (FCT) Abuja.
The way forward in 2023
Douglas Ogbankwa, a lawyer, said: “We must situate the dialectics of a proactive prognosis to give the way forward and build institutions that will insulate our judicial officers from the vagaries of administrative malfeasance.”
He stated that it is international best practice for judicial officers to concentrate mainly on policy issues, while trained administrators and financial experts dwell on the administration of the courts.
He added that there is a vertical line of leadership that meets, where there are to be far-reaching decisions. This, he said, is to allow the judicial officers to concentrate on their primary duties of adjudication of disputes, while professionals administer the system.
According to him, it reduces the exposure of judicial officers to political and economic manipulation and allow them a pride of place to perform their duties without affection or ill-will.
While applauding a new association for healthy rivalry, he called on all stakeholders to support the formation of such an association “to de-personalise the NBA.”
He stated that the crisis between the NBA and the BOB, appears to be an ego trip with an attempt to change the narrative of the issue, albeit unsuccessfully.
Godwin Ogboji, also a lawyer, suggested that to curb conflicting judgments, there should be a policy guideline by the Chief CJN, stating that no matter the circumstances, decisions of the Supreme Court on any matter should be strictly adhered to by lower courts, until the apex Court itself deviates from it.
He suggested that judges who go contrary to such should be disciplined to combat the issues of conflicting judgment.
On the poor welfare of judges, the lawyer suggested that the National Assembly should promulgate a law to ensure that judges’ welfare is taken seriously.
Ogboji also advocated improved funding for the judiciary by the executive arm and urged private sector, especially well-to-do lawyers, to get involved in the infrastructural development of courts to enhance judicial infrastructure.
We must situate the dialectics of a proactive prognosis to give the way forward and build institutions that will insulate our judicial officers from the vagaries of administrative malfeasance.
it is international best practice for judicial officers to concentrate mainly on policy issues, while trained administrators and financial experts dwell on the administration of the courts.