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Judiciary has fared fairly well under Yar’Adua govt, but…


By Ise-Oluwa Ige

More than ten years before Alhaji Umaru Musa Yar’Adua assumed office as the President of the Federal Republic of Nigeria , the Nigerian judiciary was sick. The malady in the justice system was so pronounced at the time that it gave not only the right thinking Nigerians the reason to worry but also the successive military governments which largely contributed to the woes of the third arm of government.

Symptomatic of the terminal ailment plaguing the justice sector then were corruption and high profile life-style of some serving judges; ineptitude, laziness and incompetence with the perennial problem of annoyingly delay in trial of cases, among others.

The regime of President Ibrahim Badamosi Babangida was the first government that made a serious attempt to purge the system. Specifically, the military government set up a panel to look into the problems be-facing the judiciary with a view to proffering solutions to them. But all his efforts became a mere dream as the committee he convoked to handle the assignment never sat. But the corrupt regime of General Sani Abacha succeeded where the Babangida-led government failed as it got the consent of one of the best jurists in the world and former justice of the Supreme Court, Justice Kayode Esho to head the panel that would probe the rot in the sector and proffer a clinical solution to it.

The Kayode Esho panel which gathered evidence from across the Federation indicted more than two dozens of the serving judicial officers in the country and found them unfit to remain on the bench for reasons ranging from ineptitude, low productivity, incompetence to involvement in monumental corruption. The panel consequently recommended both short term and long term measures to tackle the problems identified. As part of the short term measure, it recommended compulsory retirement or outright dismissal from the bench for the indicted judicial officers on the bench then depending on the nature of the offences established against them.

As a long term approach, Esho panel suggested, among other things, the setting up of a body to be called Judicial Performance Commission  (JPC) now (NJC) to act as watch dog of the judiciary. The commission, according to the Esho Panel recommendation, would deal with the multiple issues 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 Esho panel report which recommendations later became a public knowledge was seen by many stakeholders in the justice administration as the only solution to arrest the rot in the justice sector.

The report though gathered dust on the table of late Gen Abacha which set up Esho panel, General Abdulsalami Abubakar Administration, in 1997, incorporated some of its recommendations into the 1999 Constitution. Specifically, section 153 of the said 1999 constitution created the National Judicial Council (NJC) with statutory powers to hire and fire erring judicial officers, among other roles it empowered it to discharge. As soon as President Olusegun Obasanjo recovered from the heat of legal fireworks provoked by election petitions maintained against his emergence as president of the Federal Republic of Nigeria in 1999, he went for the full report of the Esho Panel and referred it to the National Judicial Council (NJC) for necessary action. That was in 2001.

He was of the view that no ailing sector of the nation would recover from its ill-health except the rot in the judiciary was first fixed. And upon receipt of the report, the NJC under the able leadership of Justice Muhammad Lawal Uwais (now retired) set up a Review Committee headed by Justice Bolarinwa Babalakin,(Rtd), also a former justice of the Supreme Court, to study it and make recommendations. At the end of its assignment, the NJC moved and there was an unprecedented cyclone in the third arm of government as not less than 28 serving judicial officers who were yet to clock their statutory retirement age were swept off the bench. The decision of the council forced the remaining bad eggs on the bench to change attitude to work.

Of course, between 2001 and 2007 when Chief Olusegun Obasanjo held sway as the President, corruption in the judiciary reduced considerably while radical and courageous verdicts on various public interest litigations were churned out by the third arm of government, particularly the Supreme Court, making many media houses to vote the judiciary as their “Man of the Year.”

Judiciary under Yar’Adua government
That was the situation in the judiciary when President Umaru Musa Yar’Adua came to power. Yar’Adua had worked with both Justices Salihu Modibo Alfa Belgore and Idris Legbo Kutigi as Chief Justices of the Federation and Chairmen of the NJC. Belgore whose tenure was though short but eventful had since retired while Kutigi just bowed out of the bench yesterday December 31, last year (2009).

Although President Umaru Musa Yar’Adua, in April, this year, okayed the recommendation of NJC to sack a Federal high court judge, Justice Chudi Nwokorie from office for gross incompetence by annulling the judgment of the Court of Appeal in a post election matter he handled and ensured that Federal judiciary is self-accounting, the million dollar question on the lips of many Nigerians two and a half years after Yar’Adua took over governance is: Is judiciary really improving in view of conducts of some serving judges in the country? The consensus is that the judiciary under President Yar’Adua government is faring well when its performance is placed side by side with the two other arms of government but that little has changed when the judiciary under Yar’Adua government is compared with the judiciary under the dark eras of the military government.

According to analysts, they said that though the Supreme Court has been very wonderful in terms of the quality of judgments it is churning out, nevertheless, there is still corruption among judges; that laziness, ineptitude and incompetence of judicial officers are still pronounced; that delay in justice delivery is worsening as cases still take an average of seven to ten years before conclusion; that the independence of the judiciary as it relates to self-accounting is still limited with respect to state judiciary and that alarming judgments conflicting with the verdicts of the Supreme Court are still the order of the day in the country.

According to a one-time President of the Nigerian Bar Association (NBA), Mr O C J Okocha (SAN) who amplified on some of these inadequacies, he said without any hesitation, he would still score the judiciary a B plus.

“This is because we must look at the judiciary from the context of the performances of other arms of government-the executive and the legislature on one hand and how well it (the judiciary) has discharged its constitutional duties of resolving disputes between persons and persons; persons and institutions and persons and government and between government and government.” “When you take a dispassionate view of this, only the judiciary has performed creditably well.

“I say so with all sense of responsibility as you know that the role of the judiciary is to interpret the law and settle disputes brought before it and they did quite a lot in the past ten years to strengthen the democratic process,” he said.  But beyond this, Okocha (SAN) said the performance of the judiciary is however marred by its record of widening delay in justice delivery and issuance of judgments conflicting with the verdict of the Supreme Court mostly by justices of the Court of Appeal. An Ibadan-based member of the inner bar, Chief Adeniyi Akintola (SAN) who agreed completely with Okocha (SAN) also said:

“I will conveniently give the judiciary 98% without looking back. “Why did I say so? It is evident because the judiciary has been the star of the three arms of government. It has shown like gold. It has drowned the other two arms of government by its performances. “We have witnessed so many landmark cases from the high courts through the Court of Appeal to the Supreme Court and the judiciary has lived up to expectation,” he said, adding that its beautiful performance is however marred by issuance of judgments particularly by the Court of Appeal which were in conflict with the verdicts of the Supreme Court and undue delay in trial of cases.

Human rights activist, Mr Bamidele Aturu also agreed with the two members of the inner bar to the extent that the judiciary has done well in 2009 but that the pass mark he gave could not be enjoyed by the Court of Appeal which had issued out some judgments which he described as alarming. He however brought a new dimension to the discussion of the issue as he said that the judiciary, contrary to the popular saying, is not the last hope of the common man but the last hope of the rich. By a rhetorical question, he asked how many of the common men’s cases had gone to the Supreme Court and decided?

He said the few cases earning the judiciary the qualified pass mark were brought by the rich with the exception of the Unilorin 44 recently decided by the apex court which plaintiffs he said are not even common men in the real interpretation of the phrase. Another member of the inner bar, Chief Emeka Ngige (SAN) who contributed to the discussion argued that though the judiciary of 2009 is better than the judiciary of the dark days of military rule, he however said that not much had changed even under the Yar’Adua government. He said if there was any difference, it was a matter of degree and not a matter of total difference. He looked at the judiciary from various facets to draw his conclusion.

According to him, one of the innovations introduced by NJC to cure it of its noticeable rot was the setting up of a committee known as the “The Committee on Performance Evaluation of Judicial Officers of Courts Record”. The Committee is headed by Justice B.O Babalakin,(Rtd).

“Every quarter, the Committee receives from the Heads of Court duly completed Evaluation Forms of judicial officers of the Court of Appeal, State and Federal High Courts and Customary /Sharia Court of Appeal. In the Form, the judicial officer is required to send returns of the number of Civil, Criminal and motions disposed of and the ones pending in his Court. For a judge to score the minimum pass mark, ‘fair’, he is required to dispose of at least 5 cases.

A judge who disposes less than four cases in a quarter is assessed to be on the low side.
“I understand that some Judges have been queried over their low productivity. But surprisingly, I have not heard cases of judges being dismissed or retired by NJC on grounds of low productivity.  I stand to be corrected. If that is the situation, then it means that NJC has not done enough in the light of clear cases of some judges whom we know are very unproductive. “These judges sit at 11am and rise at 2pm. Some of us who appear almost on a daily basis in some of these courts are living witnesses of the incessant adjournments of cases for one reason or the other.

“Does it mean that these incessant adjournments do not account for the low productivity of these judges?  I think NJC needs to send the correct signal that indolence would no longer be tolerated in courts particularly the trial courts.

“Another area is the delay in the trial of cases at both the trial courts and the various divisions of the Court of Appeal. Presently, election appeals that are ripe for hearing and pending in various divisions of Court of Appeal, some of them as late as 2007, are yet to be disposed.

These are appeals for which the res will disappear by 2011. As at 2009, the appeals are yet to be disposed of.  Nobody remembers that Section 148 of the Electoral Act 2006 makes it mandatory that proceedings at Election Tribunals and at the Court of Appeal should be given accelerated hearing.

“I have appeared in a particular division of the Court of Appeal where an election appeal was adjourned from April 1st 2009 to 29th September 2009.  By the time the appeal is disposed, probably in 2010, the res will have only one year to disappear. I had thought that after the determination of the cases of Buhari Vs Obasanjo (2005)13 NWLR (PT.941) 1 which lasted for two and a half years and Ngige Vs Obi (2006)14 NWLR (PT.999) which lasted for almost three years, the Court of Appeal will now fasten the hearing of appeals emanating from Election Tribunals. Regrettably cases are still being adjourned like ordinary civil appeals.

“On the issue of ineptitude and incompetence in the judiciary, I think these maladies are still prevalent in the system. A very recent case is that of a judge of Federal High Court sitting in Katsina Division who stopped the holding of a bye election in Imo State . The judge even went as far as granting a stay of execution of a judgment of the Court of Appeal! He was promptly fired by NJC.

“Another disturbing development which is rearing its ugly head in our judiciary and which I must not fail to mention is the tendency by  some courts particularly the Court of Appeal, to subvert the principle of stare decisis, one of the most sacred pillars in the administration  of justice. The elementary rule is that decisions of the Supreme Court are binding on all persons and authorities including all Courts with subordinate jurisdiction. See Section 287 (1) of the 1999 Constitution.

“In the year 2003, precisely, on the 9th day of October 2003 a full panel of the Supreme Court comprising of Belgore, Kutigi, Katsina-Alu, Uwaifo, Niki Tobi,Edozie and Pats-Acholonu, JJSC in Alhaji Mohammed Dikko Yusufu & Anor Vs Chief Olusegun Aremu Okikiola Obasanjo & 56 Ors (2003) 16 N.W.L.R. (Pt. 847) 575 interpreted Section 132 of the Electoral Act 2002 and Paragraph 14 (2) of the 1st Schedule to the  Act dealing with computation of time within which a Petitioner could file his Election Petition or bring a motion to substantially amend his petition.

The Section in question provides inter alia:  “An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared” In its interpretation of both provisions, the Supreme Court per Niki Tobi JSC who read the lead judgment at page 607 held that “the limited time does not include the day or the date of the happening of the event, but commences at the beginning of the day next following that day.

“On the basis of the Supreme Court interpretation as highlighted above the law became settled that in computing the 30 day period within which to file an election petition or to substantially amend it, a Petitioner will start counting the days from the day next after the declaration of result.

“This interpretation accords even with common sense because if an election result is declared at say 11pm on certain day, the one hour remaining on that day cannot amount to ‘a day’. A day is made up of 24 hours. The Supreme Court decision on this issue is binding on every person including the Court of Appeal. Besides there had been an earlier decision on the issue by the Court of Appeal as far back as 1989.

That decision corresponds with the Supreme Court interpretation.  But what the Court of Appeal did with the Supreme Court decision is to say the least, very disheartening.  In the case of Action Congress Vs Jonah David Jang (2009) 4 NWLR (PT 1132) 475 a full panel of the Court of Appeal refused to be bound by the Yusufu Vs Obasanjo which was brought to its attention and held that the issue of computation of time determined by the Supreme Court was made obiter”.  According to Ngwuta JCA who read the lead judgment, he said “it would have been an unwarranted extension of authority of Yusufu Vs Obasanjo (supra) beyond its legitimate borders to apply a decision based on the filing of amended process to a determination of the time for presentation of an originating process, in this case the election petition.

I am of the considered view that the trial Tribunal was right not to have followed the Supreme Court’s decision on the filing of amendment in the determination of whether or not an election petition was filed out of time stipulated in S. 141 of the Electoral Act 2006.” “Following the above decision, all election petitions on appeal at the Court of Appeal which were filed on the basis of the Supreme Court decision in Yusufu Vs Obasanjo (supra) interpreting the computation of time to file election petition i.e. 30 days excluding the day of declaration of result were struck out on this technical point.

“More than 100 appeals at various divisions of the Court of Appeal are affected by the Court’s own interpretation of section 141 of the Electoral act 2006. And as the Court of Appeal is the final Court on electoral matters save for presidential election, the case of the Petitioners is closed.

“In the end would their Lordships feel that justice has been done when a clear and unequivocal decision of the apex court binding on the Court of Appeal is being subverted? “Recall that a judge of Federal High Court who granted an order staying execution of the judgment of the Court of Appeal was fired for judicial misconduct. I also recall the strictures the Supreme Court passed on a Judge of FCT High Court (Ishaq Bello) who refused to be bound by a Supreme Court decision in Onuoha Vs Okafor (1983)2 SCNLR 244 .

The apex court threatened to deal with the judge if his act of judicial impertinence is repeated. See Dalhatu Vs Turaki (2003) 15 NWLR (PT.843) 310. I believe that this dangerous precedent by the Court of Appeal should not pass the attention of the members of NJC as it portends a big threat to the administration of justice.

“The discordant tunes or what we call conflicting decisions of our various courts is very worrisome.  It has made nonsense of the principle of stare decisis. This ugly phenomenon is contributing greatly to the erosion of people’s loss of confidence in the judiciary as the last hope of common man.  If the courts refuse to be bound by their earlier decisions, we may find that sooner than later, we shall be governed by rule of thumb rather than by rule of law.

The issue of conflicting decisions is now more apparent at the Court of Appeal than in any other court. At the moment, for any principle of law, particularly on election matters, you can get at least two sets of decisions standing opposite each other.  “I recall that the President of the Nigerian Bar Association and his officers brought this anomaly to the attention of the President of the Court of Appeal and he promised to look into it.  We are still expectant; hoping that something will be done to normalize the situation,” he added.

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