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Saving the judiciary – Part 2

By Ebun-Olu Adegboruwa, SAN
23 February 2022   |   2:14 am
Many see all the above as the usual brickbats from our leaders, carefully orchestrated in predictable fashion, to give comfort to victims of the failure in the administration of justice in Nigeria.
Abubakar Malami

Nigeria’s attorney-general and minister for justice Abubakar Malami PHOTO: TWITTER/Abubakar Malami

Many see all the above as the usual brickbats from our leaders, carefully orchestrated in predictable fashion, to give comfort to victims of the failure in the administration of justice in Nigeria. So, it is not so much about Abubakar Malami, SAN or the Chief Justice of Nigeria but rather that the system itself has too many features that trigger undue delays, as if designed to fail. If the truth must be told, the executive is the greatest beneficiary of the delay in the judiciary, being the arm of government responsible for the greater percentage of cases lingering in the courts.

It takes an average eight years to conclude trial in the High Court, about ten years to prosecute any appeal that may arise from such judgment before the Court of Appeal and an average fifteen to twenty years for any further appeal to the Supreme Court to be decided, in normal cases, excluding political cases and criminal appeals. Beyond the lamentations which have become more of a ritual, the task before us all is to proceed to proffer and implement solutions that will save the judiciary from the imminent collapse staring us in the face.

A major clog in the wheel of progress of the judiciary is interlocutory appeals, especially on the issue of jurisdiction. Even though this cannot be blamed squarely on lawyers or the judges, there is an urgent need to review our laws, especially the Constitution and indeed the Rules guiding the practice and procedure of the Courts. Since the days of Madukolu v Nkedilim, it has become fairly well settled that once the issue of jurisdiction is raised in any court, it must be accorded priority and decided one way or the other.

The challenge however is how to deal with such an issue without sidetracking the real cause of action in the case pending in court. In some cases, the issue of jurisdiction goes as far as the Supreme Court such that by the time it is resolved, the parties must have moved on with their lives and their wounds. There must be a solution, which is to always combine the hearing of the main case with all the interlocutory issues arising therefrom. The Supreme Court adopted this approach in the case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 79 at 100, where Uwais, C.J.N., (as he then was) held inter alia that:

“With the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might be”.

Even where facts are needed to resolve preliminary objection, for the purpose of convenience and economy or time, the preliminary objection can be taken with the substantive matter. See Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (Pt. 1297) 407 at 426 where this Court (Okoro, Bage and Pemu, JJ.C.A.) followed Amadi v. N.N.P.C. (supra) on the same issue to hold inter alia that –

“It is instructive that the Supreme Court has given support to the position taken by the learned trial Judge in that an objection to jurisdiction where facts are needed to resolve it can be heard together with the substantive matter and an appeal taken together if need be”

This can best be explained in the way Oguntade JCA (as he then was) did in the case of Senate President v. Nzeribe  (2004) 9 NWLR (Pt. 878) 251 at 274 where he held thus –
“… Saying that the issue of jurisdiction should be resolved first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The important thing is that the Court should first express its view on jurisdiction before considering the merits.

The advantage of such proceeding is that in the event of an appeal by any of the parties, it is easy for the appellate Court to express its views on the decision of the lower Court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as to the merit of the case”.

We must all be persuaded by the reasoning in the above decisions, if we want the judiciary to make progress, in addition to the urgent resolution of the hydra-headed issues of funding for the judiciary, autonomy in its administration, poor remuneration for and transparency in the appointment of judicial officers. In combining all interlocutory and substantive issues, we would have solved one of the major causes of the delay in the administration of justice in Nigeria.

This approach cannot be said to be a waste of precious judicial time, given that it is the same people who throng the courts that also pay the judiciary. If it is the government on behalf of the people of Nigeria that pays for judicial time, the length of time taken to resolve their main grievances in court cannot amount to a waste. More arguments may fly here and there on this point, but what is clear as crystal is for us not to retain our old habit and yet expect any change. Over to you, men and women of the noble profession.
Concluded
Adegboruwa is a Senior Advocate of Nigeria (SAN)

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