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Due process and the Nigerian judiciary: Where did we go wrong?

By Emeka Ngige

The phrase “due process” is not new in our legal lexicon. It’s a phrase which I cannot say how it originated. I became acquainted with the phrase after reading the celebrated case of Gabriel Madukolu & Ors Vs Johnson Nkemdilim (1962) ALL N.L.R (Reprint) 581. I believe it was the first case where the phrase was used and which our courts have continuously applied till today.

It was a land matter in which Joseph Egerton Shyngle appeared for the Appellant and Chief Kehinde Sofola appeared for the Respondent. Both counsels are now late.

It was held by Bairamaian F. J. who read the majority judgment at pages 589 –5 90 of the Report that a Court is competent when: “(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other, and (2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising jurisdiction, and (3) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction” That was how the phrase “due process” in my own view began to be applied in a plethora of cases since 1962.

There is hardly any decision of Court in Nigeria, where issue of competence and jurisdiction is raised that will note cite as authority the case of Madukolu Vs Nkemdilim, supra.  In Black Law Dictionary, 7th Edition page 516, the phrase “due process” is defined as “The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a Tribunal with the powers to decide the case” Well, I doubt whether this definition is apt to the topic under consideration.

But what I can discern from the intention of the framers of this topic is that I am expected to discuss in what ways due process had gone wrong in the Nigerian Judiciary. There is an inherent presumption from the topic that there is something wrong with the Nigerian Judiciary. So if we agree with the premise that there is something wrong with the Nigerian Judiciary, the next stage will be the identification of the problems.

After identifying the problems, it is our duty to proffer solutions; otherwise any criticism made in this course of this paper will not be constructive. It is our bounden duty as lawyers to make constructive criticisms that will help our judiciary to grow progressively to the benefit of all Nigerians. The perception that Nigerian Judiciary is sick did not begin today. Even the regime of Ibrahim Babangida – (a regime acknowledged to be very corrupt), an attempt was made to set up a Panel to reform the judiciary.

The attempt failed as the person announced at the Chairman of the body ignored the appointment. During the regime of General Sani Abacha, another attempt was made and this time around a panel was in December 1993 inaugurated. The panel headed by the renowned jurist, Justice Kayode Eso, was inaugurated with a mandate to embark on a comprehensive reform and reorganization of the Nigerian

Judiciary with a view to addressing certain identified problems. The problems which formed the nucleus of the panel’s terms of reference included: “1. Polarization of the judicial system along ethnic, tribal and political lines, 2. Corruption and high profile life style of some of the judges; 3. Ineptitude, laziness and incompetence; 4. Long period that it takes to dispose of a case; 5. Mode of employment of Judges which does not facilitate the appointment of the required caliber of Judges into the service; 6. Terms and conditions of service of Judges”. See “Kayode Eso: The Making of a Judge” by J.F Ade. Ajayi & Yemi Akinseye-George pg 369.

The ‘Eso Panel’ (as the Panel was called) was setup against the backdrop of public outcry against the deterioration of ethical standards of performance by the judiciary in Nigeria. At the end of its assignment the panel made several far reaching recommendations which included the setting up of a body to be called Judicial Performance Commission which later was baptized as ‘National Judicial Council’, a central body to deal with the issue of appointment, discipline and remuneration of judges from the High Court to the Supreme Court, the issue of the judiciary being self-accounting, the issue of corruption in the judiciary and the problem of Court congestion. The panel found some 28 judicial officers culpable for various offences ranging from corruption to declining productivity. It recommended that some named serving judicial officers be flushed out from the system.

It was common knowledge that the Abacha Administration received the Report. But for some unexplained reasons the Report was swept under the carpet. When General Abdul Salami Abubakar Administration came on board in 1997 some of the Panel’s recommendations were implemented in part by their subsequent incorporation into the provisions of the Military-made Constitution of the Federal Republic of Nigeria, 1999. In 2001 following a clamour by stakeholders in the administration of justice, the Obasanjo Administration exhumed the Report and referred same to the National Judicial Council for necessary action. A Review Committee headed by  Justice B.O Babalakin,(Rtd), CON was later set up by the NJC to study the Report and make recommendations.

At the end of its assignment some judicial officers including Chief Judges were given the red card. See “Performance Evaluation of Judicial Officers and the Role of the National Judicial Council: The Journey So Far” by Hon. B.O Babalakin, a paper delivered in November 2007. Now 15 years after the Eso Panel’s recommendations and their partial implementation, how far has our judiciary fared? It is the question this paper will attempt to answer.

I will like to be guided in doing this assessment by relying substantially on the terms of reference given to Eso panel albeit by way of questions: (1) Is our judiciary still polarized along ethic, tribal and political lines? My answer to this question should be in the negative. The fear of NJC has now become the beginning of wisdom. The people that floated the idea of a centralized body like NJC to deal with cases of misconduct by judicial officers across the country must be commended. Some people have argued that NJC is an aberration and runs counter to the principles of federalism. Yes, it may be so on the surface.

But such ingenious arrangement is what has saved our judiciary today from being polarized along ethnic, tribal and political lines. So far I don’t think we have witnessed a repeat of the ugly scenario in 1993 shortly after the annulment of June 12 election whereby conflicting judgments were being dished out by the various High Courts in Lagos and Abuja.

The NJC has so far brought sanity to the system through dismissal and retirement of judicial officers found to have violated their judicial oath. Without an independent body like NJC characters like Justices Wilfred Egbo-Egbo and Stanley Nnaji will still remain in the system.

Recall the Ekiti impeachment saga, where a judge against a written advice by the then Chief Justice of Nigeria who was also the Chairman of NJC allowed himself to be appointed ‘Acting Chief Judge’ for the purpose of setting an impeachment panel favourable to the Government of the day in Abuja.


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