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‘Unbundling Supreme Court would create more conflicts’

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Chief Anthony Idigbe


Legal history as a research methodology is novel to Nigeria, but it is something that is already entrenched in other jurisdictions. Senior Advocate of Nigeria and Senior Partner, Punuka Attorneys, Chief Anthony Idigbe in this interview with JOSEPH ONYEKWERE, explains that establishing legal history method in Nigerian jurisprudence would resolve the incessant cases of conflicting judgments by helping judges to understand the spirit of every law before arriving at a decision.

When we talk about legal history, what does it actually entail?
LegaL history essentially is a research method that focuses on using certain techniques to draw attention to legal trends and to make legal thesis based on historical data. And the technique usually involves mining those historic data. It can help draw attention to events of the past but not just about the past, it can help to contextualize the present. So, it is not just a record of the past. Legal history is a window to the present.

It does appear like a course of study? Do we have it in the faculties of law of our universities?
It is not a course of study per se, but more of a research method. So, it is not a subject on itself, but a means by which you can explore other subjects.

In other jurisdictions, we already have this imbedded. Why don’t we have it in Nigeria?
That is one of the things we are trying to encourage in Nigeria. I think the problem we have is that legal research in Nigeria is essentially doctrinal. Let me explain what I mean so you can see the difference between legal history and legal doctrine. Legal doctrine usually would take the text of the law and then make analyses, postulations, trends and theories based on the text of the law. That is doctrinal. If I want to do a research, I will take any text, either the constitution or a law and quote the sections. But legal history would go beyond that. It would look at that law within a social context for instance. If I were doing a research on say, section 80 of a law, I would ask how did that section 80 come about? Legal history would tell me, if I use the proper method, the reason for the section. So, when you are looking at that section 80, you are just not analyzing the text, but you are looking at it within the social or historical spectrum.

How do we quantify the usefulness of legal history to a society?
I think that if there is more pursuit of legal history method, then we will give flesh to the law. It would then lead us more to the spirits of the law rather than the letters of the law. Having that understanding of the history behind any law or event or periods, times and being able to project into the present would give you better understanding of the law.

How would the knowledge of legal history enhance the work of the judiciary?
The lawmakers understand the importance of history. They traditionally keep their hansards and their records and they make it accessible. So, if I wanted to find out the debates that took place before a law is passed, I will go to the hansard of the national assembly. I will see who made the motion and what was his reasoning. I could even go beyond the hansard and know who were the people who sponsored the law. I can equally go to the newspapers around that time to find out who were the agenda setters at that time. Were there publications in the newspapers and other contending issues? What are the trails leading to that law? There are classical legal scholars who will say that in interpreting the final section, you can now go back to look at those contexts, and that you must restrict yourself to the words of the text that finally come out. So, there are different schools of thought about the extent to which you can go in respect of the text of the law in order to interpret it. But what legal history method does is to help you understand the history better and not necessarily for the interpretation of the text, but it helps you with generally understanding your current position.

Lately Nigerians have been worried about some kind of conflicting decision coming out of the courts, even at the Supreme Court level. As at today, you can hardly be sure that a decision will go a certain way because of established pattern. How would this legal history help the judiciary in particular do their work better, having armed themselves with the spirit of the law they are adjudicating on?
I guess that the court today is overwhelmed by the sheer number of cases they have, and because of the inefficiency in the process of legal justice, its accumulation of cases, there is so much delay that results eventually. In an attempt to clear the load, there is excessive reliance on technicalities. So, that is a problem. I think there is a challenge for us to try to find how to reduce the timeline for determination of cases. Once that is achieved, and that requires substantial reform in processes, procedures, and personnel and of course funding.

And once that is achieved, then you can have the courts focus on the more jurisprudential issues around principles. Again we are usually structured in such a way that at the lower courts, they can be dealing with textual issues, which is strict interpretation and application of law. But as we go up the ladder of appellate courts, they should be more of jurisprudential issues, more of doctrinal issues and that is where the relevance of the knowledge of legal history comes up because you want to know the reason why the law is there and how it came about. So, while the lower courts would be saying this is what the rules say and apply it, as we go up, it should be – why this law and how did it come about? Is it just? What are the values? So the bigger issues go to the highest courts, while the simple issues of application go to the lower courts. Definitely, as you go up the appellate ladder, there should be more room for legal history rather than technicality. Although there is always technicality on how you get to that court, but once you are in the court, it should be substantial issues of justice and law that probably involve some legal history.

But there are those who are arguing that in the proposed judicial reform, it should include unbundling the judiciary?
I think that is a little bit laughable. On one hand you say that the Supreme Court is having contradictory decisions on the same issues because they have different panels and on the other hand, you want to unbundle it to have it in different places. You are just going to create more conflicts. United States of America has about 340 million people. They have one Supreme Court and they have only nine members. Canada has over 30 million people, but its land mass is more than 10 times that of Nigeria. Its economy is much more bigger than Nigeria. They have a complex society with English and French speaking people, different kinds of provinces – big and small and they have nine judges as well and only one Supreme Court. The Supreme Court should be a policy court. It should be focusing on those bigger issues and most of the works need to be done at the lower courts in terms of justice delivery so that only very few matters end up at the Supreme Court. I think where we have the problem is that we have not gotten it at the lower level. Some of the suggestions I have made before include for instance, to allow justices of peace have proper courts at the lowest level. Some of them are non-lawyers as it were, but nothing says you must be a lawyer to be a justice of peace. They can have actual courts unlike now that they don’t have any. They could treat simple issues. For instance, in Canada, justices of peace grants bails and perform any other actual judicial function.

But here in Nigeria, they only sign warrant. There is so much more that they could do at that level to relief the magistrate courts and get the magistrate courts and the high courts work better, so that only few cases could move to appeal court and Supreme Court. Some of the issues we at times fight over in Nigeria are as a result of lack of confidence in the judicial system. So, people don’t know when to let go. If you think the system is corrupted, you just keep fighting with the intention to circumvent it. That means that everybody ends up going to the Supreme Court. So that raises many issues about the funding, the quality of people there and the quality of the people that are even being produced by the system. We have cases where lawyers know that their clients are liable, but they just want to fight on because of the culture of impunity. For them, it is all about winning without rules. It should not be so. The issues are so complex that we need to deal with those culture issues in order to actually reduce the backlog of cases. We also need to deal with the processes as well.

Nigerians would like to know the role of documentation in legal history?
Documentation is very important. Documents are the foundation for legal history. If you are looking at historical data, most of them are captured in documents to be able to build the theories of thesis of what you think happened, how a particular law affected a particular set of people at a particular time and those sort of things. You can get it from telephone directory, birth records, court records, which in a contextual consideration of the matter, you will not be looking at those sorts of documents. You will only be looking at the text of the law. Legal history enables you to explore those other historical data and be able to make a postulation.

Who are the people sharing the same thought with you on the bid to entrench legal history in Nigeria?
We have Prof. Fabian Ajogwu (SAN), Supo Sashore (SAN), a legal historian, Ed Keazor, who is based in London, Adeyinka Abdulsalam, and Samson Ekong, a journalist and lawyer. Those are the core people that started the legal history society of Nigeria. We expect the society to grow hopefully and that people would understand the importance of legal history.

Can you give us a clear picture of what the country stands to lose if we don’t have such a society?
Let me ask you a question. Has anybody done a research to say who were the judges in Lagos courts from 1874 to 1963 for instance? To do that means that you will have to know the historical record of the courts, how the courts changed over time, how it came to become Lagos state courts and all those. You have to identify all the legal instruments that led to that process. You have to identify all the judges and Chief judges, who were the heads of courts. And for each of them you identify, you have to learn where they were born. How do you get access to their CV’s? How do you cross-check the facts, even if you see a document that says it is their CV? You can only do those through legal history method. So you must make sure that every fact is confirmed with historical data. And then you come out with a resource that would be available to everyone. It is not just writing about cases. Somebody from the work can now say this is the history of the courts at that time. One of the problem that is going on now in the federal high court is that the federal high court has a provision that says that it shall be by summary trial. However, they have taken before the high court, treason and other felonies. And they actually tried them by information and not summary. But the law says trial before the court is summary.

Are you talking about the rules of the court or the law setting up the court?
The Federal High Court Act, which sets up the court. This is apart from the constitution. The constitution didn’t say how the court should operate. It simply says the courts are set up. It is the act of parliament, setting up the high courts. It states that its trials shall be in summary. For you to be able to interpret that, you have to first understand the historical context of the federal high court. For instance, if you didn’t know that the federal high court was a revenue court, which dealt with those sorts of federal revenue issues and that at some point, its jurisdiction was expanded to include commercial matters and more serious matters, you will never understand why that anomaly exists. And the court had had to grapple with it and tell us that not withstanding that provision, if it is a serious offence, it would be through information. The person needs to know what trial he is coming to face. So, legal history can give you that window to be able to explain certain things, otherwise, you may not be able to explain them from the context of the law.

What other ways would legal history society promotes and encourages Nigerians to go into legal history?
If we get the right funding, we may do scholarships, fellowships, sponsorships and things like those.

How has legal history helped the jurisprudence of other jurisdictions where it is entrenched?
European countries and North American countries understand the importance of legal history and they make great effort to record their history. So, if we were to use the World Bank indexes, we would arrive at the conclusion that the more successful countries seem to be those ones that are quite successful in their legal history. So, there must be some connections in those two.

QUOTE
I think that if there is more pursuit of legal history method, then we will give flesh to the law. It would then lead us more to the spirits of the law rather than the letters of the law. Having that understanding of the history behind any law or event or periods, times and being able to project into the present would give you better understanding of the law.

QUOTE
The Supreme Court should be a policy court. It should be focusing on those bigger issues and most of the works need to be done at the lower courts in terms of justice delivery so that only very few matters end up at the Supreme Court. I think where we have the problem is that we have not gotten it at the lower level.


In this article:
Anthony Idigbe
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