In this interview with Vanguard’s Law & Human Rights, law teacher and renowned Economic and  Financial Crimes Commission, EFCC, prosecutor, Mr Wahab Shittu, SAN, offers suggestions on how the National Judicial Council, NJC, can stop conflicting court rulings/judgments in the country.

He also spoke on the recent sanction of five judges by the NJC, the need for a shift in EFCC’s model of crime investigation and qualities that a Federal or State Attorney-General must possess, amongst others.

By Ise-Oluwa Ige

Conflicting judgments from courts of coordinate jurisdiction remain a problem in the country. How do you think NJC can tackle this?

The issue of conflicting judgments from courts of coordinate jurisdiction remains a significant challenge to the judicial system in Nigeria. Courts of coordinate jurisdiction are courts that have equal authority to hear and decide cases of the same kind. In the Nigerian context, this often arises when different courts at the same level such as High Courts in different states or divisions, or even different divisions of the same court, deliver conflicting decisions on similar or identical legal issues. These conflicts undermine the consistency and predictability of the law, create confusion for litigants, and reduce public confidence in the judicial system.

The NJC as a body responsible for overseeing the judiciary, has a critical role to play in addressing this problem. There is a need to encourage judicial harmonisation through the establishment of precedent guidelines. There is also a need for enhanced supervision of court decisions. NJC needs to monitor court rulings and ensure case tracking and database management. There is also a need to promote judicial education and training. Legal research and case law summaries should also be encouraged.

One of the most effective ways to resolve conflicting decisions from courts of coordinate jurisdiction is through the appeal process. The NJC can encourage and facilitate quicker access to the Court of Appeal when conflicting judgments occur, especially in cases of public importance. In some instances, the NJC could work with the judiciary to prioritise such cases for appeal, ensuring that the appellate courts address the conflict on time. 

There is also the need to appoint specialised Appeal panels and make effective use of judicial precedent and consistency while Nigeria follows a hybrid legal system (which mixes civil and common law traditions). There is still considerable value in encouraging judges to respect judicial precedent, especially when higher courts have ruled on matters. The NJC could promote the practice of citing binding precedents, particularly decisions of the Court of Appeal and the Supreme Court, to help guide decisions in lower courts.

This would reduce the likelihood of conflicting rulings on the same legal issue across coordinate courts. The NJC could establish a mechanism for periodically reviewing case law to ensure consistency and uniformity in judicial decisions. This review could focus on clarifying judicial principles and harmonising conflicting interpretations of laws by different judges. 

There must also be incentives for collaborative decision-making. We should encourage judicial consultation and peer review among judges and set up a Judicial Forum for discussing conflicts. It is also important to leverage the NJC’s powers of oversight by ensuring disciplinary measures for inconsistent judgments while ensuring judicial review and case management mechanisms.

The NJC last week sanctioned five judges including two heads of courts who were sent on compulsory retirement over age falsification offence. There is an ongoing conversation now that the punishment of the judges was insufficient. What’s your view?

As far as I am concerned, the sanction on the five judges is salutary given my belief that the decision must have arisen after careful consideration and a fair hearing was delivered to the parties involved. It is a positive development.  The NJC’s decision, if it is based on valid concerns about judicial misconduct or unethical behaviour, can be seen as a positive step towards maintaining the integrity of the judiciary. Holding judges accountable for corruption, bias, or misconduct is essential to maintaining public trust in the justice system. 

This aligns with efforts to root out corruption and ensure that the judiciary functions without compromise. Confidence in the judex is indispensable and a fundamental factor in the administration of justice.   Therefore, any steps taken to restore public confidence ought to be applauded and encouraged in the interest of justice. The only caveat is that fair hearing at all times must be given to all parties facing allegations of judicial misconduct.   

It is also important to note that judicial independence is crucial for a fair and effective judicial system. It is my conviction that NJC acted independently in this matter. If the NJC acts independently, free from political interference, its actions could reinforce the importance of an autonomous judiciary. In such cases, disciplinary measures could be seen as an affirmation that no one—no matter their position—is above the law. The decision could also set a significant precedent for future judicial conduct and ethics in Nigeria. If the sanctions are well-founded, they could signal a shift towards greater professionalism in the judiciary. 

The AGF recently recommended FBI model to EFCC and ICPC in tackling corruption by concluding their investigation before arrest. As an EFCC prosecutor, do you share this view? 

The Attorney-General of the Federation, AGF’s recommendation for the EFCC and ICPC to adopt the FBI model of concluding investigations before making arrests is an intriguing and potentially transformative suggestion. While it is rooted in an important principle of ensuring that law enforcement agencies build strong, evidence-based cases before making arrests, the approach raises several issues worth discussing in terms of effectiveness, practicality, and impact on the fight against corruption in Nigeria.

Before proposing factors that ought to be put in place to deliver quality investigation outcomes, the first proposal that I wish to make is that no case should be taken to court without proper investigation no matter the extent of public outcry. Secondly, emphasis should be placed on investigation-led arrests as opposed to arrest-led investigations.  

Thirdly, arraignment of suspects in court should be based on verifiable, conclusive and supportable findings arising from diligent investigations. Fourthly, investigators must be available at all times to give evidence in proof of the outcomes of the investigations.   Fifthly, investigators must carry out all necessary steps including obtaining all relevant evidential materials in support of investigations. 

It is also important to guarantee the security and welfare of investigators including potential witnesses as well as sensitive documents in aid of the trial process. More importantly, it is important that the investigation process is adequately monitored to forestall compromise and severe sanctions should apply in the event of breaches. The other element that should be guaranteed is the security of evidential materials recovered during investigations if possible ensuring that such materials do not fall into private hands that could be subject to attacks, targeting of course, the recovery of those documents. 

It is also important to constantly test the character, integrity and moral standards of investigators including ensuring the availability of up-to-date training programmes for investigators. There should also be stiffer penalties available to officers who deliberately bungle investigations for pecuniary or other vested interests. My final take on this is to call for a code of ethics to be put in place for all categories of investigators as a policy framework

Having said that, it is important to note that investigations play a crucial role in our criminal jurisprudence as they form the basis for all prosecutions and trials. There is no investigative judge under the Nigerian legal system – the legal process is initiated by the prosecutor based on the information received or obtained from sources, such as individuals, governments, international, inter-governmental or non-governmental organisations. In undertaking investigations, the first major challenge is ensuring compliance with the provisions of the Administration of Criminal Justice Act 2015. Part 2 thereof relating to arrest, bail and preventive justice is relevant. Section 3 of the ACJA provides:

“A suspect or defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of this Act, except otherwise provided under this Act.”

Significantly, investigators ought to comply with the mode of arrest, notification of cause of arrest, humane treatment of arrested suspects and generally avoiding unnecessary restraint except when there is a reasonable apprehension of violence or an attempt to escape by the suspect. There is also the need to comply with provisions on the search of arrested suspects, inventory of the property of arrested suspects, examination of arrested suspects, a search of place entered by a suspect sought to be arrested, recording of arrest, the establishment of criminal records registry, quarterly report of arrest to the Attorney-General, execution of warrant and procedure etc. Compliance with these preliminary safeguards is necessary to prevent suspects from sustaining fundamental rights enforcement claims against investigative agencies arising from avoidable lapses during investigations. 

Going forward, my first recommendation would be that a copy of Administration of Criminal Justice Act 2015 be made available to all operatives and prosecutors for necessary guidance as compliance with the ACJA is mandatory for effective investigations and prosecutions.

To conduct criminal investigations effectively, an investigator will need considerable powers. These include the power to detain a suspect; seize property as evidence; search for evidence; both in premises and on persons;   interview suspects (and, in doing so, question their honesty and character, which in some countries may otherwise be considered to be an act of defamation, a criminal offence); require samples, such as fingerprints and DNA, and to take photographs; run identification procedures;  interview witnesses, including victims; ask members of the public questions; keep and maintain personal and confidential information; use technical and personal surveillance and use other intrusive means to observe persons; work undercover (i.e. pretend to be someone else) or use informants; protect and relocate witnesses; undertake otherwise illegal activity such as possess illegal substances, carry weapons, force entry to property, or monitor illegal internet traffic. 

Increasingly, an investigator also needs to be able to call for international assistance in order to track the activities of criminals across international borders. There are normally international organisations and bilateral agreements in existence that can offer support, but such facilities need to be accessible and viable for any investigator working at a local level.   

An investigation is a core duty of policing. Interviewing victims, witnesses and suspects is central to the success of an investigation and the highest standards need to be upheld. Forces need to develop and maintain the valuable resource of a skilled interviewer. Interviews that are conducted professionally and quality-assured realise several benefits. In particular, they can direct an investigation and gather material, which in turn can lead to a prosecution or early release of an innocent person, support the prosecution case, thereby saving time, money and resources and increase public confidence in the police service, particularly with witnesses and victims of crimes who come into direct contact with the police.

Without the accounts of those who played a central role in the crime, or those who have witnessed an important aspect of the commission of a crime, other sources of material such as CCTV images, fingerprints and forensic material, although extremely important, may have little value. Conducting investigative interviews is, therefore, a crucial element of the process of investigation.

The foregoing may have shown the urgent need to pay closer attention to the quality of investigations otherwise public outcry targeting bungled prosecutions would be meaningless as the law court not being a charity organisation can only act on the basis of the quality of materials placed before the judex.

There is a suspicion amongst lawyers that virtually all Attorneys-General appointed by either the state or federal chief executive officers in Nigeria, past and present, have deviated from being their principals’ advisers to their masters’ boys because of the fusion of the office of AG with Justice commissioner/minister. How do you react to this?

The Attorney General of the Federation (AGF) in Nigeria has a broad scope of responsibilities. The constitutional roles of the AGF are wide indeed. The occupant of the office being the Chief Law Officer of the federation advises the Federal Government on legal matters: being the Chief Prosecutor, represents the Federal Government in court and is also the custodian of Federal Laws with compliance responsibilities. The AGF also has statutory responsibilities. These include overseeing the administration of justice in Nigeria, initiating and overseeing law reform programmes, providing legal advice to federal government agencies and instituting and conducting criminal proceedings. 

The office collaborates with international organizations on legal matters. The office also interprets and advises on constitutional issues, protects and promotes human rights, investigates and prosecutes corruption cases, advises on national security matters, represents Nigeria in international legal forums, oversees the judiciary and court administration, prepares and reviews legislation and collaborates with law enforcement agencies amongst other responsibilities. 

The Attorney General of the Federation plays a crucial role in upholding the rule of law, ensuring justice, and promoting good governance  in  Nigeria. The statutory responsibilities of Attorney Generals of States are no less challenging and overwhelming. This may have raised the debate as to whether a single person can combine the offices of attorney general and minister of justice without being in danger of conflict situations.

The first point to be raised is that no separation of the two offices is feasible without wholesale constitutional amendment. Since independence and even before independence, our system has been used to combining the two offices in one person and a fundamental shift from this position will require a renewed attitude and fresh mindset to adapt to the changing narrative. 

The second point to note is that the argument is not the desirability of the separation of the two offices, an argument which is neither here nor there but the character, integrity of the persona of the occupant of the office. In my view, the office of the AGF is too important to our constitutional democracy to be surrendered to mediocre and political sycophants whose track records do not subscribe to the element of justice. The AGF must not be a lawyer of great standing but a phenomenal jurist of international standing who is obsessed with the theory of justice and is ready to lay down his life in protection of same. The questions to ask are as follows: is the AGF at any point in time experienced, exposed, knowledgeable, apolitical, courageous and of such international standing to attract the respect of both the Bar and the Bench in the justice delivery process?

These are the issues that ought to engage our attention and for which we need to interrogate seriously and dispassionately and not whether the office is separated or retained in its present form. The central argument is whether the occupiers of the AGF’s office are effective and efficient and whether the persona is such that can be trusted.

Kano State Chief Judge has directed magistrates not to countenance any criminal case filed by police who are not qualified lawyers. Do you agree with the CJ? 

The directive issued by the Kano State Chief Judge (CJ), instructing magistrates not to entertain any criminal cases filed by police officers who are not qualified lawyers, is an important statement on the legal professionalism and integrity of the criminal justice process. There is a need to sanitize our criminal justice delivery process by ensuring that elements who are qualified man the process to ensure efficiency and effectiveness.