Tayo Oyetibo was conferred with the prestigious rank of Senior Advocate of Nigeria (SAN) in 2003, which is a rank reserved for legal practitioners who have attained distinction in the practice of law in the country. He is a consummate advocate, reputed for his integrity and professional skills in the area of dispute resolution, particularly litigation and arbitration. In this interview, he spoke on the usage of enforcing judgement of the court, appointment of Supreme Court justices from the Bar and lawyers failure to report to the Chief Judge any judge who fails to sit or who sits late.Excerpts:
By Bartholomew Madukwe
COURTS all over the country have been under lock and key for four weeks now, following the strike embarked on by the Judiciary Staff Union of What do you think the problem is?
There is only one executive. The Attorney General, the Minister of Finance and any other minister, they are officers under the president. So there can only be one executive under the constitution of Nigeria. It is not a department or ministry that constitutes the executive; it is part of the executive. And what the JUSUN is trying to achieve is the independence of the judiciary from the executive, so the problem is with the executive.
Overlap of functions
The issue is to be resolved by the executive, irrespective of whatever ministry. You may have an overlap of functions, but the fact remains that there is only one executive. The executive has the solution to it.
But can strike action be used as an instrument to enforce judgement of the court, as it appears to be in this case?
I think the whole essence of independence is that no one arm exercises control over the funding of the other. There is a structure prescribed by the constitution and there is a judgement of the court, I believe what the Union is saying is that the judgement should be obeyed. Of course, the question has been raised whether you can use a strike to enforce the judgement of a court. The answer is no.
However, when it comes to trade unionism, it is more or less pressure from the government to adjust its position and yield to the demands of a Union. And it is also correct that you do not use a strike action to enforce judgement of the court. From whatever angle you look at it, what is important is for the judiciary to enjoy its independence according to the constitution and the judgement of the court.
The way forward is for the government to sit with the Union and resolve the dispute. The solution cannot lie with the Union, it must lie outside the strike action itself, and that is with the government.
Among the three arms of government, one may wonder, why is it only with the judiciary that financial autonomy is an issue?
You know the constitution was only amended recently for the National Assembly to have its own financial independence, and some other statutory bodies. It is one thing for a provision to be in the statutory book, it is another thing for the arms of government concerned to implement according to the letters of the constitution. I think the whole essence of the strike is that the letters of the constitution and the judgement as pronounced by the court should be implemented. So there is provision and there is implementation.
Some lawyers have argued that the appointment of Supreme Court justices from the Bench should be extended to the Bar. What is your view?
I believe firmly that the Supreme Court should be populated not only by judges on the Bench, but also should be drawn from experienced lawyers at the inner Bar and in academics. We have living examples of people who have come from either the Bar or academics to sit on the Bench of the Supreme Court and they have done very well. Justice Teslim Elias, Justice Nnamani, Justice Niki Tobi, and recently we have Justice Nweze. Presently, justices of the Supreme Court are being drawn from the Court of Appeal, while judges from the High Court are drawn to the Court of Appeal.
We have had occasion in the past where Chief Judges were elevated to the Supreme Court direct. Justice Oputa never sat on the Bench of Court of Appeal. Justice Craig never sat on the Bench of Court of Appeal. Justice Nwokedi moved directly from the High Court to the Supreme Court. These are identified good hands.
What we are saying is that rather than restricting the appointment of Supreme Court justices to the Court of Appeal, members of the inner Bar that have been identified and willing to go to the Supreme Court Bench should be appointed. We need people of diverse intellectual background; we need them in the Supreme Court to strengthen it. You do not have to restrict appointment to the Supreme Court to Court of Appeal alone. No, because it is the highest court in Nigeria and whatever it says is the final point of law.
Don’t you think judges have failed to assert their independence?
It is up to a judge to declare the law as it is. The constitution of Nigeria makes a judge to be independent in its decision. So it is up to the individual judge, if he or she wants to tie his or her hand. I do not see anything tying any judge under the law or under the constitution. So each judge will decide according to his or her conscience. But I expect that a judge will exercise that independence in deciding any matter. However, I do not lose sight of the fact that some judges try to submit to the wishes of the executive in their state. It is not expected of them to do that and it is not a requirement of the constitution that a judge must dance to the tune of the executive. Any judge that does that is not acting according to the oath of office that he or she has taken- to do justice to all manner of men, without fear or favour.
The National Judicial Council (NJC) has been accused of not taking measures that will make judges be proactive in the discharge of their duties, shun indolence, late sittings and unnecessary adjournments. What is your take on that?
I know that judges make returns to the NJC on the works they have done, and the NJC do query some of the lazy judges. Having said that, the NJC sits far off, it is seated in Abuja. You have 36 states and you can imagine the number of judges that sits on the Bench of each High Court of the various states. So there is a wide gap. There should be a mechanism for monitoring activities of judges, particularly those who sit late and those who do not sit regularly. Unless such information is brought to the NJC, there is no way they will know.
Performance of judges
The Bar should bring to the attention of the Chief Judge of the state, judges who do not sit early or who do not sit regularly. This will assist the Chief Judge in monitoring the performance of judges in the state. The Chief Judge should be able to take immediate steps, which includes reporting to the NJC to solve the problem of late sitting or irregular sitting by some judges.
Are you aware of any
such report from the Bar to the Chief Judge of the state, against any judge who failed to sit or who sits late?
It depends on the particular branch of the Bar. But the truth is that many of the branches have not been doing that. Certainly, it is necessary that branches of the Bar report judges in their various states who fail to sit or who sits late; it is part of the function of the Bar.
As the general elections draws closer, what is your position on INEC’s preparations towards ensuring free and fair elections?
One of the major issues is to get our candidates contesting in the elections to dwell on issues, than personality. And when they mention issues, it is not deep. They talk of fighting corruption, but they do not talk about how they intend to fight corruption. Some make general statements like “I will make sure that the economy improves”. How does he want the economy to improve from what it is now? You must go to particulars. In the days of UPN and NPN, you will see the statistics that UPN will rule, how many schools are in this state, this is what we intend to do, this is how we want to finance it. They will go as far as telling you methodology, how they intend to finance the programme. Then NPN will tell you that this is our four cardinal programmes. Have you found that in recent campaigns? Do they even have Research Department?
Political parties used to have Research Departments. Do they have information, statistics? So people just clamour for power, they want power for the sake of power. It is when they get to office that they will start thinking of how many schools are in a state. But a political party is supposed to conduct its own research and make the findings available to the candidates. If a party cannot sponsor research for its candidate, then what are they sponsoring? They do not have information. And this is the bane of our politics, it is most unfortunate. If we carry on like this, things will get worst and worst.
The electorates should ask the candidates questions like how do you want to improve the economy, how do you want to fight corruption, how do you want to bring alive the textile industry, how do you want to improve on agriculture etc. It is by the candidate’s explanation that we will be able to know if he or she knows what he or she is saying.
It is a general saying to go to the poll and say I will fight corruption. What does that mean? Do you box corruption? Those are issues that we have different sectors of the economy. The textile industry has almost gone aground in Nigeria. Nobody has come to tell how he or she intends to resuscitate the textile industry in Nigeria. Power sector, railway, nobody has said what he or she wants to do with them. Candidates must come with a particular, which is what campaign is, that is what it means to convince people.
Has Nigerians heard anything about what the government wants to do with the tax? These are the main issues that should agitate the mind of anybody who will come and seek your mandate to govern. The candidates are not talking about government, they are talking about themselves. It is so unfortunate. This cuts across the board, all the candidates. They are not discussing issues. Nigeria should have gone pass this type of campaign, going to the poll and dancing. Is it the dancing that will feed the man on the street? What do you see in our campaign? Candidates go to dance.
Nigerians will get the government that they deserve, if these are the kind of people that want to govern us. They are not telling us issues, they are not telling us how they intend to achieve what they are promising us they will do- if at all they make promise.
Building of infrastructure
It is not just promising, you must tell us how the promise can be attained, that is the real campaign. You can take for example the health sector, how do you want to improve on its present state?
You can even take the issue of cement production in Nigeria, which is very important in the building of infrastructure. The prize of cement keeps going up; it should be an issue for campaign. Housing should be an issue. Have they ever joined issues in campaign? This one may choose a method and the other one will counter it, so you place your strategies before the electorates and then we will go and reason.
But they will never go to particulars because they know that is where you will catch them. They will expose themselves once they go into particulars. It is when you have researched that you will know how to achieve, but because they have not researched that is why they are not going into particulars.