By BARTHOLOMEW MADUKWE
Tayo Oyetibo, SAN, is the founder and Senior Counsel at Tayo Oyetibo & Co. He is a consummate advocate, reputed for his integrity and professional skills in the area of dispute resolution, particularly litigation and arbitration. He was conferred with the prestigious rank of Senior Advocate of Nigeria (SAN) in 2003.
He was a member of a team of consultants to the National Assembly of Nigeria, appointed by the United Nations Development Programme (UNDP) for the First and Second Amendments to the Constitution of the Federal Republic of Nigeria 1999, which were carried out in 2010. In this interview, Oyetibo explained that the judiciary is the least funded arm of government in Nigeria, and expressed views on sundry matters in the Administration of Justice. Excerpt:
NBA has expressed fear in the Independent National Electoral Commission (INEC) conducting a free and fair election in 2015, what is your take on this?
Well, INEC is an institution set up by the constitution. And as a statutory body invested with power to conduct general election, there is no other body that can do so outside INEC. So INEC exist for that purpose. But if the personalities that make up the body are not performing up to standard, they can be changed.
It remains the body responsible for the conduct of elections, there is no other body. You cannot say INEC cannot conduct election, but you could say that the personalities that constitute INEC at present cannot conduct election. I do not think that the personalities could be written off completely. They have tried, on a comparative note. Going by our previous experience, I do not think it will be absolutely correct to write off INEC, as constituted by the present team.
Some Nigerian lawyers are of the opinion that the Administration of Justice in the country is very slow and inefficient, what is your position?
Yes, it is slow and there is no doubt about that. Those of us who have been in practice in this country for some years would readily agree that the machinery is slow, and there are quite a number of factors responsible for that. First, the courts are not, to me, well funded by the State. Under the constitution, there are three arms of government; the executive, the legislature and the judiciary.
Of these three arms, it is the judiciary that is least funded. And unfortunately, the judiciary cannot fight for itself because it is not peopled by politicians. That is part of the problem. If you go round the courts in Nigeria, you will find out that almost in every State, judges still take proceedings in long hand.
Why should that be so? Even in the highest court in Nigeria (Supreme Court), they still write in long hand. Even though we have filed written briefs, but in the course of oral arguments they take proceedings in long hand. That ought not to be so for God sake. It is most discouraging to any practitioner.
The Supreme Court by now should have electronic recording system, and the CDs could be paid for by the litigants. Each litigant should have a copy of the proceedings. It is public proceedings, everything should be electronically recorded, and there should be companies that would produce the transcript, as it is done in some other countries.
As a matter of fact, as soon as you file your processes, you should be able to pay for copies of the CDs that would be made available to you, and the transcript at the end of the proceedings. So that within 24 hours or 48 hours, you should have a copy of the CD, backed by the official transcript that you then subsequently obtain.
That should happen all through the hierarchy of courts in Nigeria. If you do that, it ensures transparency. Everything that you say in court is recorded. Whether it is said by the judge, a party or a counsel, it is on record. But the transcript would just be the official removing of unnecessary comments by the side.
The CD would be mere recording, verbatim; everything that is said in court is contained in the CD. The transcript would be the official record that can then be certified and given out. That is what we should be doing in Nigeria and it is not difficult. How much would a State invest in acquiring electronic recording gadgets to be able to do this. If you do that, we will be 50% away from this slowness in the Administration of Justice.
Some lawyers also argue that the judiciary is been influenced by the executive arm of government who determines judges pay, which to an extent ties the hand of some judges, what is you stand on this?
I do not think so; the judiciary hands are not tied, except a judge who wants to tie his or her own hand. No executive is tying any judge’s hand. The governor has no power to remove a judge from office. The governor has no control over the salary of a judge, so why should a judge say his or her hands are tied, who is tying the hands? I do not think so.
It is only a judge who wants his own hands tied by the executive that can make such complain. I do not see any reason why any judge should complain of his hands being tied. There is a laid down procedure to guarantee the independence of the judiciary, no governor can single handedly remove a judge from office. So every judge is free to give judgment in the case before him or her, according to his conscience and the law of the land.
Lack of thorough investigations in criminal allegation is a front burner of issues affecting our judiciary system, what would you say?
That is correct. Some of the agencies responsible for prosecuting criminal offences in Nigeria do not do their home work properly before filing cases in court. At the end of the day when objections are taken against such criminal charges and they are thrown out, the judiciary is made the weeping boy; as if it is the judiciary that has connived with the accused or the counsel to the accused.
Whereas it is the prosecutor who has not done his home work properly before filing his charge, that could be due to inefficient investigation on the part of the agency concerned or the prosecutor who has not put his paper properly before the court. So I think there is substance in that view.
Ghana and Tanzania, for example, have used proactive case management and application of robust rules of court to change the face and wave of justice delivery in their country, but in Nigeria that does not seem to be the case, what would you say?
That is attributable to human beings because law dynamic, you cannot be using 1945 rules or procedure, 1916 procedure. In civil procedure for example things are changing, but in criminal procedure things are not changing. You see states changing their rule relating to civil proceeding.
Most of the states now have adopted the new regime in the civil proceedings, but in criminal proceedings it is still the archaic procedures that are still obtainable in most of the states, such that the criminal procedure act was enforced as far back as the 60s, the CPC in the North, and the Criminal Procedure Act in the South.
Except Lagos State that passed a new Administration of Criminal Justice Law recently, and even with that there are still some problems. So I think there is room for improvement to be made in the Administration of Criminal Justice in this country. There should be a mechanism whereby criminal proceedings would be expeditiously disposed of in our criminal courts.
Can you shed more light on how you helped Mallam Nuhu Ribadu to have his rank restored in the Nigeria Police Force, as Assistant Inspector-General (AIG) before he resigned?
Well, Mallam Nuhu Ribadu said part of it during the official opening of my new law firm in Lekki, Lagos. What Ribadu said is on public record. He was demoted from the rank of AIG in the Nigeria Police, and then eventually he dismissed. We challenged the motion and also the dismissal. And at some points the Federal Government saw the hand writing on the wall and agreed that we should file terms in court and his rank was restored as Assistant Inspector-General, and also he was reinstated in the police service. And he went back and voluntarily retired from the force.
I remember they (Federal Government) did challenge our action that we could not challenge the police authorities. We argued it, and our case was upheld that we are entitled.
The regulation being relied upon was declared unconstitutional. There is a regulation in the police regulations that forbid police officers from going to court, and we challenged it as being unconstitutional and the court upheld our submission and held that it was unconstitutional. So the court gave us the green light to continue with the case, and that was how we were able to proceed with the case to conclusion.