The recent directive by the Chief Justice of Nigeria (CJN), Adamu Musdapher, to judges handling corruption-related cases to ensure that all corruption cases are concluded within six months, has elicited a wide range of comments from stakeholders. For the anti-corruption agency such as the Economic and Financial crimes Commission (EFCC), it is a welcome development and a solution to its clamour for the establishment of special courts for corruption-related cases. But many senior legal practitioners feel it is just a directive from a seminar paper that has no legal backing. It is in the light of this that a Lagos-based Senior Advocate of Nigeria (SAN) and scholar, Dr. Joseph Nwobike in this interview with BERTRAM NWANNEKANMA bares his mind on the motives behind the directive and its workability. He also speaks on the controversy surrounding the re-constitution of new governorship election tribunal for Borno State and the legal implications of the introduction of a new vehicle number plate by the Federal Road Safety Commission (FRSC), among others. Excerpts:HOW do you react to the recent directive by the Chief Justice of Nigeria (CJN) to the effect that judges should ensure that corruption cases are dispensed off within six months'I must recognise the fact that the Chief Justice of Nigeria is the head of the judiciary. To that extent, he has the supervisory powers over the courts that are established in the constitution or the courts that are established in other laws made by the states or National Assembly, but the extent of that supervision is what we cannot say in specific terms, except in cases where the supervisory powers of the CJN are clearly stipulated in practice directions or in other forms of subsidiary legislations. One cannot say for certain that this is the extent of which the CJN can supervise courts and in that regard give directives. The directives from the CJN were reported in some newspapers. I have not seen those directives, but let me say that there are several circumstances that cause delays in hearing and determination of a case. Whether the case relates to corruption or not, those circumstances are bound to arise from time to time. I give you an example. Under the latest operations in our constitution, electoral cases are to be completed within 180 days from the date of filing, but what has happened so far shows that substantial number of these electoral cases have not been concluded or are not even concluded within the 180 days as provided in the constitution. And the reasons are multiple. I believe that the directive given by the CJN to courts to hear and determine corruption related cases within months was made in good faith, it is doubtful, whether those cases can actually be concluded within six months.Are you then saying that the directive is not feasible'You will also understand that a lot of witnesses have to be invited by both the prosecution and the defence, and you cannot say because you want to conclude those cases within six months and those constitutional safeguards both for the defence and the prosecution will not be applied. So as much as our courts strive to deal with these corruption-related cases as quickly as possible, it must, however, be subject to adherence to several constitutional provisions.Are you saying that the CJN has powers to give such directives'I know that CJN has powers to issue practice directions to certain courts, particularly the Supreme Court of Nigeria, and courts, which derive their powers from the Supreme Court Act of the constitution. But I don't think the CJN has powers to issue directives to states' courts or even the Federal High Court. But like I said, I have not seen the directive myself, I don't know under which law he issued the directive. But I believe that the CJN, being an experienced judge, having risen from the High Court to the Court of Appeal and to the Supreme Court, would have given the directive in consonance with existing legislation. I have not seen the legislation.Do you then think that judges who flout the CJN's directive can be punished'If there are no laws on the basis of which the directive was issued, then the necessary implication is that it cannot be enforced against judges who refuse or fail, whether for justifiable reasons or not, to conclude the hearing and determination of corruption-related cases within six months. Except there is a particular legislation or practice direction which has the force of law, then, it cannot be enforced, and the judges are not bound.In any event, we all know that some of these cases had been in courts for years, and of course, there are provisions for interlocutory appeals and you cannot say because you want to conclude a case within six months, a party will not be at liberty to call all the witnesses and tender all the evidences, which they tend to rely on, especially when they are criminal cases. You also know that under Section 36 of the Constitution, the accused persons or the defendants have the right to defend themselves, and they must be given adequate opportunity to defend themselves.Tied to this are the despicable conditions of the courts, whether in their sizes or equipment. Don't you think they also contribute to delays in quicker adjudication of cases'The delay in dispensation of justice, particularly as it relates to litigation, is a matter that is caused by a wide -range of circumstances.In the first place, in the conduct of litigation in Nigeria, the lawyers, the judges, the witnesses and parties already have a mind- set that cases stay long in courts. In other words, cases are not determined timeously. Several rules have been introduced, particularly with reference to the conduct of civil matters in order to activate and achieve an early dispensation of justice, but we have seen, from experience, that all those efforts, all those interventions, have not been able to produce the desired results.So the availability of courtrooms with sufficient space for judges, lawyers and litigants, is perhaps one of the reasons why we have delays in the administration of justice. For instance, there was a time when witnesses could not find where to sit down in courts and they would be outside the courtrooms pending when their cases would be called. On that basis, the cases were adjourned. But I don't think that is very important. The most important factor militating against quick dispensation of justice in Nigeria is attitude. Attitude of lawyers, attitude of litigants, attitude of court officials.Can you be more specific on what you mean by attitude'Somebody will file an action and when you ask him to come to court, he will give you all sorts of excuses; the witnesses give all sorts of excuses why they would not come to court when they are expected to give evidence. The lawyers give all sorts of excuses why they don't attend proceedings. So, if you look at the reasons or excuses that are given either by lawyers or by litigants for their failure to attend court proceedings, you will see that some of them are clearly untenable. I must also confess that our legal system encourages such a practice. For instance, when you have four parties in a criminal proceedings and one of them is not in court, for that reason alone, the matter is adjourned for two or three months.I agree that the condition of service of the judges are also very bad. But there are situations where the judges are ready to do their work, but the lawyers, litigants and witnesses are not there. Court registrars do not come to work on time. There is no power. All these contribute to the delay in administration of justice. So, it is very unfortunate that justice can be delayed for such very untenable reasons.How do you think these problems could be addressed'I think the Federal Government has to declare a state of emergency in the judicial sector, because all is not well with the judicial sector. What I mean is that the judges must be adequately taken care of. Sufficient equipment and courtrooms must be provided. The judiciary itself must be sufficiently funded, sufficient number of judges and other judicial officials must be appointed and adequately remunerated. We also have to take a second look at the various rules of courts, from the Fundamental Rights Enforcement Procedure Rules to the various rules of our various courts. For instance, the former Attorney-General of Lagos State, Mr. Supo Sasore (SAN) recently presented a paper on the issue of jurisdiction, on the damage the issue of jurisdiction is causing to our judicial process. A party will be served with a copy of the Writ of Summon, he will file a notice of preliminary objection challenging the jurisdiction of the court on the matter. They will argue it, he will fail. He will go to the Appeal Court. Because he has raised the issue of jurisdiction, the lower court, in most cases, will stay proceedings. He will spend three years there and the Court of Appeal will say, yes, the High Court has jurisdiction, and he will still disagree. He will go to Supreme Court and spend another four years at the Supreme Court trying to determine whether or not the lower court has jurisdiction. Finally the Supreme Court will then say, yes, the lower court has jurisdiction before he will come back to the lower court to try the substantive matter.So, you can see the time wastage, the waste of judicial resources, which the issue of jurisdiction has caused. I think that our legal system must take account of that and find a solution to that issue. I don't have a clear mind of what should be done, but why can't we say all the courts should have jurisdiction' There is nothing wrong with that, whether it is the state High Courts or the Federal High Courts. They all have general jurisdiction. Any court you go to, the court can hear you, I think by that, we will cut down the problem associated with the challenge of jurisdiction.Don't you think that the lawyers should be held responsible for this'You see when you brief a lawyer; you are asking him to defend you both on facts and on law. When the lawyer looks at the pleadings and finds out that the particular court where the action was filed has no jurisdiction as a result of a procedural deficiency or as a result of deficiency in terms of the subject matter of the suit, he is entitled in law to raise issue on jurisdiction. Once he raises it, the law is that the court must determine the issue of jurisdiction first one way or the other. We recognise the fact that the Supreme Court and even the Court of Appeal in some cases had held clearly that where the action is commenced by originating summons and supported by affidavit evidence the issue of jurisdiction could be taken together with the substantive suit. But we have seen in those cases the lawyers will file counter-affidavit to the affidavit in support of the originating summons, and the matter will look as if it is a disputed matter and in that case the judge will want to determine the issue of jurisdiction one way or the other.So, I really don't think it is the problem of the lawyers, but legal procedure and remedy they are trying to exploit. If they are not available, I don't think they will be exploiting it. But because it is available, they will exploit it because that is why they are lawyers. But I think our lawyers must look at the totality of justice delivery system in taking advantage of some of these legal remedies in the conduct of their cases in court.There have been complaints over recent moves by the Federal Road Safety Corps (FRSC) to introduce new number plates with three-year life span. Do you think FRSC has such powers to do that'If you look at the Federal Road Safety Commission (FRSC) Acts Cap F19, Laws of the Federation 2004, there is no doubt that the commission has extensive powers to issue vehicle licences in the form of vehicle numbers. That being the case, one can conclude that it has statutory powers to issue licences by way of vehicle plate numbers. We all know too that it has been doing that for a very long time, so we are used to seeing such directives from FRSC. We are also aware that the number plates that our vehicles are using now are not what we were using in the past. You remember that when Dr. Olu Agunloye was the head of that commission, he introduced the type of vehicle licence plates we are using now. So I think, it has the right to do that. But again, I also think that in doing that, it does not have absolute powers. It must ensure that it does it in accordance with the various regulations made pursuant to the Federal Road Safety Commission Act. I also think that the periodicity that is imposed on the vehicle licences cannot be illegal, because if a man has powers to issue licence, he has powers to determine the way and manner that licence will be utilized and he may also have the power to determine the lifespan of that licence. I also think that it is important for the FRSC to exercise it powers now having regard to the new wave of vehicle related violence that is going on in Nigeria. You will recognise that recently, the United Nations' office in Abuja was bombed and that a car was used. And that so many violent related activities have been perpetrated with the instrumentality of vehicles. I think that the new licensing regime should be able to capture the personal data of those who make the applications and will be able to collate those data with the persons.In some advanced countries, once you see a number plate or a vehicle licence, you will use that vehicle licence to determine or procure all the information concerning the owner of that vehicle. But I don't think that is applicable in Nigeria. FRSC needs to collate adequate information, which will assist our security agencies in tackling our security challenges.There have also been concerns over the cost of the number plates and the people's per capital income, what is your opinion'Well, it depends on the type of vehicle licence regime it wants to introduce. If it is one, which will take account of sufficient data, and back-up processing of that data as well as to integrate the data with the databank of our security agencies, there is no doubt, it will involve a lot of work and definitely, will cost more than what it used to be.We should talk about its availability because right now, it is even difficult procuring the one we are using. I think that the commission is a public institution, it is not a profit-making institution. FRSC should be careful in entering to all sorts of third party relationships, which will now bring about a situation where personal data of Nigerians will be used by private institutions for some private purposes. The Federal Executive Council should be able to intervene and determine the actual unit cost of the vehicle licences and in that regard, deal with it in such a manner that Nigerians should be able to license their vehicles.As the election petition tribunals wind up, we have begun to see scenarios where orders and judgments seemed to be arrested by superior courts like we have in Borno, what is your reaction on this issue'Let me start from the Borno case. I am one of the counsel in that case. What happened in that case was that the petition was filed within time. All the pleadings were also done within time, and the petitioners brought an application ex-parte seeking for the directions of the tribunal for pre-hearing notice to be issued. That pre-hearing proceedings should commence. The tribunal in its considered ruling gave 10 days after the application ex-parte was argued. It dismissed the application and then asked counsel to address it on whether or not the petition should not be dismissed. The petitioners went to the Court of Appeal for several reasons. The petitioners, who are appellants at the court of Appeal, could not take the appeal. Meanwhile, the petitioner also brought another application by motion on notice asking that those forms be issued. The respondent brought two or three motions asking that the petition be dismissed as an abandoned petition and the tribunal took arguments on these motions and adjourned for ruling. Meanwhile, the matter was at the Court of Appeal. At the Court of Appeal, the court made an order that the ruling on those motions, that is, motions seeking to dismiss the petition as an abandoned petition should abide the decision of the Court of Appeal. The respondent went to the Supreme Court. At the Supreme Court, it agreed that the court of appeal had no powers to stop the proceedings at the tribunal and then asked all the parties to go back to the tribunal for the continuation of hearing. Now, in between that time, the petitioners had written a petition to the president of the Court of Appeal against the members of the tribunal alleging bias. It was in that vein the President of the Court of Appeal disbanded the panel and then set up another panel to conclude the hearing and determination of the petition howsoever. The new panel came on board and read the ruling by which it dismissed the petition of the petitioner on the grounds that it was abandoned, not withstanding that the petitioners had been pursuing their petition. They filed all their processes within time, they took all the necessary steps and their counsel, about five Senior Advocates of Nigeria (SAN) were attending the tribunal regularly. I understand that the matter has gone to the Court of Appeal.But again, I must say that the president of the Court of Appeal has the constitutional powers to set up election petition tribunal for governorship elections. If he has the power to set up election petition tribunals, he also has the powers to disband, reshuffle and deal with those tribunals. So I don't see anything wrong with that. It has happened in other states. I understand it happened in Delta and others. So it is not new.What message will it send to the public that panels are being constituted and disbanded at will'One of the pillars of judicial independence is that litigants must have confidence in the judiciary. In other words, where one of the litigants does not have confidence in the personnel, who are adjudicating over his case, he can write a petition to the appropriate office or officer of the judiciary as the case may be and seek the transfer of his case from that judge or from that panel to another. It happens all over the world. Clearly, the message this circumstances have delivered are that it is possible for litigants who do not have confidence for a particular panel or a particular judge to write a supervising office or officer of that level of judiciary and that supervising officer after taking due consideration from the comment from the judge involved or comments from the judges involved and comments from counsel from the other side can decide whether to uphold that petition or not. In some cases petitions are written and ignored in some cases they are acted upon, it does not mean the judges removed are corrupt. It simply means there is need to instil confidence in the minds of the petitioners with regard to their petition.In the case of states such as Akwa Ibom and Benue, where the Supreme Court ordered that a new panel be constituted to hear a petition that had been dispensed off, are there any mechanism to sanction members of the panel, which the Supreme Court felt did not do a thorough job'As a judge, when a matter is filed, you have the responsibility to deal with that matter the way you see having regards to the law. In this case, the law does not specifically say, you can come in this particular manner, the law does not say, you can write ordinary letter, the law does not also say you can come by motion ex-parte. The law does not say, you can come by a way of motion on notice, but the law says, you must come by a way of an application. Some judges are of the view that it must come by a way of a motion on notice, some others take the view that no, it can only come by way of motion. Whether motion on notice or motion ex-parte, the Supreme Court has said that even if it is an ordinary letter, that it is indeed an application. In that regard, you cannot say that the justices at the Court of Appeal or at the lower tribunal flouted any law, no, or were corrupt or compromised. No!. That is not the issue, the point is that the Supreme Court has said you did not properly construe the law or interpret the law. That is all. A judge is free to make a mistake, especially if that the mistake is the one that is reasonable, having regard to the law, evidence and pleadings that are before him.
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