An Agenda for the New CJN!
The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com
The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Congratulations to Her Lordship, Honourable Justice Kudirat Motonmori Olatokunbo Kekere-Ekun, CFR, on her appointment as the Acting Chief Justice of Nigeria (ACJN) last Friday. ThisDay Lawyer wishes her an innovative, progressive and successful tenure.
The Beginning of a New Era
Now that we are have come to the end of one era with the retirement of Chief Justice Olukayode Ariwoola last Thursday, and the beginning of a new era with ACJN Justice Kudirat Motonmori Olatokunbo Kekere-Ekun, CFR, I believe that this is the right time to make a few comments about the Judiciary. However, as a Lawyer of almost 33 years standing, I will be measured in my remarks, as Rule 31(1) of the Rules of Professional Conduct for Legal Practitioners 2023 (RPC) mandates all Lawyers to treat the court with respect, dignity and honour. So, I will simply try to outline a few areas, which if the ACJN works on, I believe will bring improvement, not only to the Judiciary, but to other parts of the administration of justice sector.
It is stating the obvious, that the ACJN has a considerable amount of work to do to reform the Judiciary. According to The Hon. Sir Gerard Brennan, AC, KBE, QC, Chief Justice of Australia (1995-1998) in his Paper “The Role of a Judge” delivered on 13/10/96, he stated inter alia thus: “It is only when the community has confidence in the integrity and capacity of the Judiciary, that the community is governed by the rule of law…A bastion of impartiality is independence – independence not only from the Executive Government, but from other centres of power….”. I concur. Presently, the bitter truth is that, the Nigerian community has very little confidence in the integrity and capacity of the Judiciary; and Her Lordship, the ACJN must set out to correct this by bringing about the much needed improvements that the Judiciary requires – restoring the integrity, capacity, independence and other laudable qualities to Nigeria’s Judiciary; for the people to have better access to justice, and for public confidence in the courts as the last hope of the common man, to be rekindled.
Instil Discipline into the Judiciary
Just as there are many good eggs in the Judiciary, there are also bad and corrupt eggs there too; the latter give the Judiciary a bad name, and it is time to rid the Judiciary of them, in order to restore the dignity of this once revered arm of government.
Recall the 2020 case of Adams Oshiomhole, when he was suspended by his Ward 10 Etsako Local Government, a decision that was ratified at Local Government and Edo State APC levels. Proceedings were instituted against him at the Federal High Court (FHC) Abuja, which ordered his suspension as Chairman of the APC. Instead of going on appeal, they headed to Kano; and the next day, a FHC in Kano issued a counter-order preventing the suspension of Oshiomhole as Party Chairman – an abuse of court process. On appeal, the Court of Appeal upheld the decision of the Abuja FHC.
Again, in 2021, there was the case of former PDP Chairman, Prince Uche Secondus, in which a Rivers State High Court issued an order preventing him from parading himself as Party Chairman, having been suspended from the PDP at ward level. Similarly, instead of going on appeal, Prince Secondus’ supporters headed to Kebbi State High Court on a forum shopping spree, and despite the fact that there was an existing order in the matter which had been publicised to the whole of Nigeria, and additionally, the Kebbi Court lacked the territorial jurisdiction to entertain the matter, a counter-order restoring him to the position of Chairman, was issued by the Kebbi Court. Subsequently, even though the Kebbi Judge, Umar J., tried to backtrack by vacating her order, alleging that the court had been misled by Counsel, it was obvious, even to a child, that her later retraction was an afterthought, having been caught out. Aside from the fact that there was absolutely no nexus between Prince Secondus, his Ward and Kebbi State, the matter was already well known in the country since it concerned the leadership of the main opposition party, PDP; and the public was well aware that the matter was already before a court of coordinate jurisdiction in Rivers State. Another abuse of court process. These are the kind of things that have almost become the norm today – conflicting judgements on the same matters from courts of coordinate jurisdiction.
To restore the dignity of the Judiciary, the ACJN must not allow the courts to continue to be used as a playground by/for Politicians and their Counsel. As a matter of urgency, the ACJN must instil discipline into the Judiciary. Judicial Officers who allow themselves to be purchased in forum shopping, those who are corrupt, those who hear matters that their courts lack the jurisdiction to entertain and engage in other forms of abuse of court process, should be sanctioned, even sacked, if need be. This is the only way to deter judicial officers, who break their judicial oath with gusto and aplomb. There should be a mechanism in place that when such erring Judges are proceeded against, there must be simultaneous disciplinary proceedings launched against erring Counsel at the LPDC.
The importance of the judicial oath was underscored inter alia in Our Line Ltd v SCC (Nig) Ltd & Ors (2009) LPELR-2833 (SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN); that even if a judicial officer is appointed, they cannot resume sitting until the judicial oath is taken. The judicial oath demands honesty, faithfulness to the Constitution and the delivery of justice, over and above personal interest. In Akpan v State (1992) LPELR-381 (SC) per Adolphus Godwin Karibi-Whyte, JSC, the Supreme Court held inter alia that the court’s primary role, and in observance of the judicial oath, is to do justice between the parties before them. A situation in which many Nigerians believe that they cannot obtain justice in court, is unacceptable.
During the tenure of Hon. Justice Ibrahim Tanko Muhammad, GCON, abuse of court process was taken to the next level – it was the order of the day, and even though immediate past Chief Justice Ariwoola made statements that such unruly behaviour would not be tolerated, not only was it tolerated, some judicial officers who openly engaged in various forms of abuse of court process and failed to serve the community by delivering justice according to the law, were rewarded and elevated to higher positions around the same time that Justice Ariwoola made the statement threatening fire and brimstone against erring judicial officers! Unlike her predecessor, Nigerians expect the ACJN to walk the talk.
To build up the Judiciary, the ACJN must develop a better appointment process for Judges; a better assessment system, so that promotion of judicial officers will based on merit, and totally discourage the previous practice of failure and bad behaviour being the stimulant for elevation instead. I recall that in 2021/2022, then NBA President, Olumide Akpata had stated that some Judges who were being considered to go to the Court of Appeal, didn’t know basic legal principles like ‘Lis Pendens’! Such people have no business being at the Magistrate Court, let alone being elevated to the penultimate Court of Appeal.
Making the Supreme Court Supreme
The ACJN must gather stakeholders, to decide how appeals that go to the Supreme Court can be streamlined. By virtue of Section 233 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), practically everything can be appealed to the Supreme Court. I discussed this issue, in my piece of 4/6/24. The Supreme Court is a Policy Court, not a run-of-the-mill appeal court that hears appeals on how to share meat amongst chiefs according to native law and custom, or settling Landlord and Tenant issues. See the case of Petgas Resources Ltd v Louis N. Mbanefo SC.129/2018 Ruling delivered on 20/12/2021 per Helen Moronkeji Ogunwumiju, JSC. Streamlining appeals to the Supreme Court will not only reduce its excessive load, but give it the dignity and standing that such a final court demands.
The Court of Appeal has developed a reputation for delivering conflicting judgements and sometimes, even perverse judgements. See the 2023 election petition case of the Plateau State Lawmakers. While the Plateau State Governor was able to get justice on his election petition at the Supreme Court on the same facts, the Lawmakers who didn’t have a right of appeal beyond the Court of Appeal were denied justice. This type of circumstance underscores the importance of having an unimpeachable, transparent recruitment process for capable judicial officers at all levels, so that Nigerians will not feel that they cannot get justice until they reach the Apex Court.
Chief Justice of Nigeria, Not Just the Supreme Court
In some of our previous writings, Olawale Fapohunda, SAN and my humble self had emphasised the fact that the CJN’s portfolio covers the whole of Nigeria, not just the Supreme Court, Abuja, and it therefore, entails spot visits to as many State Judiciaries and other Court Divisions around the country as possible. A few years ago, I went with a friend of mine to a Magistrate Court in Abuja, just to observe proceedings. To my utter dismay, I discovered the the court room was being shared by two Magistrates, using some kind of alternate arrangement. A good number of courts in different States are in deplorable condition – no ceilings, no roofs, no toilet facilities, even for the judicial officers. The ACJN can also request that all State CJs (CJ) send video recordings of all the courts in their jurisdiction, if it isn’t feasible to travel to all the different States.
The ACJN must liaise with the CJs, to find a way around the State Judiciaries being starved of funds. The CJs have now become subservient to the Governors, not co-equal as they should be, as they must go cap in hand to their State Governors, begging for funding for capital expenditure and better conditions of service. Some Governors give their CJs as little as N5 million per month for capital expenditure, while some Judges including CJs, ride in 12/13 year old vehicles that break down every 100 metres!
For one, the budget of the Judiciary, whether at the Federal or State level, should be a First Line Charge payable to the NJC for Federal Courts and Heads of Court for State High Courts, from the Consolidated Revenue Fund or Federation Account (see Part I Paragraph 1 NJC Paragraph 21(e) of the Third Schedule to the Constitution). Just as the LGCs were removed from the clutches of the Governors in order to allow them function, similarly, can’t the State Judiciary capital funding also not be extricated from them, so that the State Judiciaries do not continue to be at the mercy of the Governors who are more like Emperors, and accountable to no one? Not only is it demeaning for the CJs, making them seem subservient to the Governors, it impedes the independence of the Judiciary (see Section 162(9) of the Constitution).
The argument on the other side is that funding the capital expenditure of State Judiciaries directly from the Federation Account goes against the spirit of true Federalism, but, already the Judges of Superior Courts of Record, including State High Courts, are already paid directly from the Consolidated Revenue Fund of the Federation (see Sections 81(3)(c) & 84(4) of the Constitution), so why can’t their capital expenditure be channelled directly through the NJC to the State Heads of Court?
Now that the salaries and remuneration of judicial officers of Superior Courts of Record have been increased, the ACJN must also prioritise salary increase and better working conditions for Magistrates and other members of the Lower Bench. They are a part of the Judiciary (see Section 6(5)(j-k) of the Constitution), but their conditions of service, are deplorable. Some Magistrates earn less than N200,000 monthly, while many of them are seen jumping on ‘okadas’ or waiting at bus stops to take ‘danfo’ or the bus.
Intersection between the Judiciary, Ministry of Justice, Police and Correctional Centre
The issue of Prison decongestion is also a pressing one within the administration of criminal justice sector, and demands that the ACJN in consonance with CJs, the Attorney-General of the Federation and State AGs, the Inspector General of Police and Controller General of Prisons, work together to achieve this goal. Paying one or two visits to the Correctional Centres, will give the Acting CJN a real feel of the overcrowding and terrible conditions there, and cooperation with the various agencies will bring on solutions to reduce the number of those awaiting trial, who are principally responsible for the overcrowding.
Conclusion
The ACJN is expected to hit the ground running. As someone who has been in the Supreme Court for over 10 years, she would also be aware that some in-house overhaul of the Supreme Court’s Registry, is long overdue. For one, the process of giving adjournment dates to litigants requires an urgent review. The wheels of justice in Nigeria move too slowly; technology must be embraced, as it is one of the means by which there can be a faster delivery of justice. Undoubtedly, the ACJN should expect to face opposition to reforms from enemies of progress within the Judiciary and other parts of the administration of justice sector, but this must not deter her. Lastly, it may be helpful for her Lordship, the ACJN to publish her vision and agenda for the Judiciary.
