Kekere-Ekun CJN: In her shoes – Part 2

Last week, I commenced a detailed diagnosis of the issues affecting the judiciary in our land, with the aim of making positive recommendations to the Honourable Chief Justice of Nigeria for her kind consideration. This is a continuation of the series.

Still on interlocutory appeals
This has become a knotty subject for so many reasons, which is why the discussion on it has lingered in this piece. It is also one of the factors causing delay in the effective determination of cases, generally. Given the state of our laws, it is safe to surmise that there will always be decisions of the court taken at the interlocutory stage of the proceedings, whether as to jurisdiction, amendment, injunction and all manners of preliminary objections.

In some cases, the interlocutory decision may not stand the test of appeal such that if the trial court were to be permitted to proceed in its error, grave injustice would have been entrenched. In cases where the interlocutory decision is proper and sustainable, it would also amount to injustice to suspend the said decision and its effect to await a prolonged and most probably a frivolous interlocutory appeal. In Nigeria, the lower court faced with an appeal against its decision is always very careful in navigating through the murky waters of proceedings subject to such interlocutory appeal.

The end result is that a good number of cases are suspended to await the decision of the higher court. This process can take up to five, ten or more years, whilst the substantive case is wasted without attention.

By the state of our laws, most of these interlocutory appeals require the leave of either the lower court or higher court, for them to proceed to hearing. By the time such leave is granted, to the stage of filing the notice of appeal and the exchange of briefs of argument, some of the litigants may have died or the subject matter of the case may have been destroyed or compromised. This is an avoidable setback for the justice sector.

The concept of leave in relation to the exercise of the right of appeal by a citizen is to me, totally anachronistic and antithetical to the concept of constitutional sovereignty. In law, leave connotes permission granted to do a thing. Its origin generally is from the foreign jurisdictions with unwritten constitutions, where governance is based on conventions. The monarch or ruler is the sovereign and it is taken that he can do no wrong. Consequently, certain legal steps cannot be taken in his court without his permission or consent.

In the course of time, the consent was then transferred to the courts in the form of leave to be granted to his subjects who intend to take up actions against him. This can be seen in the prerogative writs of certiorari, prohibition and mandamus and also garnishee proceedings. When Nigeria was under colonialism, the concept of leave was also extended to our courts. This was why it was compulsory for instance in the former Fundamental Rights (Enforcement Procedure) Rules, for an applicant to first seek and obtain leave of the court in order to file an action to challenge his oppressor who has been alleged to have violated his fundamental rights. Our forefathers fought for independence through which they secured sovereignty for the people of Nigeria and this led to the birth of section 14 (2) (a) of the Constitution which states that “sovereignty belongs to the people of Nigeria from whom the government through this Constitution derives all its powers and authority” (emphasis supplied).

The government includes the courts. How then can those who have custody of sovereignty be asked to seek leave for the exercise of their right of appeal? This is bearing in mind the fact that appeal itself as a concept is not so clearly defined in the Constitution. What section 318 (1) of the Constitution talks about is “decision” which “means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.” It is my humble opinion that every “decision” of the court should be appealable as of right without the necessity of obtaining leave of court.

The present situation of the appellate courts is that applications for leave to appeal have themselves constituted another form of “appeal” before the main appeal and at times they last longer in court even more than the substantive appeal. What it means is that we now have three levels of appeals namely: (1) the application for leave to appeal against interlocutory decisions of the court of first instance or in respect of notices of appeal involving facts or mixed law and facts, (2) the interlocutory appeal itself, and (3) the main appeal against the final decision of the court in the substantive case. Many cases do not reach stage three at all before the parties either die, lose interest in the case or the subject matter is extinguished. It is a waste of time, manpower and resources. And it is affecting due administration of justice adversely. The concept of leave to appeal should be abolished completely. The CJN plays a pivotal role in this regard as the head of the judiciary in Nigeria with sufficient leverage to influence a positive change.

Funding for the judiciary
This is actually at the heart of the issues plaguing the third arm of government. The resources allocated for the judiciary cannot give us the kind of justice we all crave for in our country. When compared with the funding of the executive and the legislature, the judiciary is best described as being neglected.

I am well aware that the current administration has jerked up the budgetary allocation to the judiciary but it is still so meagre and unacceptably inadequate, when compared to what is actually needed to make an impact in this all-important sector. It is because of the age-long neglect of the judiciary by successive administrations that we now have the wrong impression that the tokenism of the present regime would make any positive impact.

The judiciary requires urgent and holistic interventions, especially in the States, where some of the courtrooms are leaking, where lawyers have no seat in the courtroom, where judges are fanning themselves in hot and crowded courtrooms, some of them deploying rechargeable lanterns to conduct proceedings in thick darkness. Judges are themselves human, with a limit to the capacity of the burden that can be absorbed from their official assignments.

Some of them actually combine their domestic roles of housewives and mothers with their judicial functions, and this category is increasing every year as more female judges secure judicial appointments ahead of their male counterparts. When the working condition is not conducive, it constitutes a disincentive to effective performance.

Stakeholders’ conference
What is urgently required is a stakeholders’ conference to address all the issues, ahead of the next budget presentation at the end of the year. The appeal is to My Lord the Honourable Chief Justice of Nigeria to use her good offices to secure the co-operations of the National Assembly, the Executive, the Bench, the Bar, civil society organisations connected with the judicial sector, etc, for this crucial conference.

The conference will dwell on long, medium and short term plans to revamp the judiciary and also collate the outcomes of previous gatherings in this regard. There are 105 Senators and 360 Honourables in the National Assembly presently. We can start with that number for the appellate courts at the minimum. With proper funding, enough houses and courtrooms will be built to accommodate the increase in the number of judges to be appointed, as was the case when we had the Apo Legislative Quarters.

We have always advocated for improvement in the welfare of judicial officers and judicial staff, justifiably so. Now that this has been addressed in a little way, the next focus should be on infrastructure for the courts, especially in the area of technology.

Uniform specification for the courts
We should target situations in which proceedings, orders and judgments of court are available the same day or the next day, thus eliminating proceedings recorded manually. In addition to this, no court building should be located in an environment where there is no parking space, where rioters and criminals hold sway or where there is no constant electricity supply.

The NJC should develop a blueprint that will specify the minimum conditions to be met for the construction of court buildings, such as the number of toilets, car park spaces per courtroom, the type of chambers to be built for judges, recreation facilities, restaurants, libraries, the Bar Center, computer centres, banks, security posts, court registries and the other offices for the judicial staff.

This will be in the form of a prototype design which can be copied by those who intend to build courthouses. Once you get into a courtroom in Nigeria, you should have an idea of the kind of facilities you expect to be in place. Although designs may differ from State to State, the concept and content must align in terms of the minimum specifications. This is applicable in the aviation industry where certain conditions must be met in order to build safe and functional airports.

This uniform design will serve to replace the old courtrooms inherited from the colonialists, some of which have become totally dilapidated and dangerous for human occupation or activity. If we go by the figures being reported in the news as either stolen or embezzled, it becomes so clear that if there is the will power to improve the state of our courts, we will experience a quantum leap in our quest for speedy and effective administration of justice.
Adegboruwa is a Senior Advocate of Nigeria (SAN).