Stakeholders in the legal community recently expressed concerns over the quality of judges that man the temple of justice in our country, as well as the devastating impact of their judgment on the society. To tackle these problems, many have suggested a drastic overhaul of the mode of appointment of judges considered in legal community as second to only 'God'. In this interview with BERTRAM NWANNEKANMA, a Lagos- based Senior Advocate of Nigeria and insolvency practitioner, Kunle Ogunba provides a leeway towards solving the problem. He also points out legal options opened to judges in dealing with applications considered frivolous in addition to an insight on what constitutes an abuse of court process. Excerpts.CONCERNS have been raised on the quality of judges appointed to man our courts, what in your view do you consider the way out of all these'If you look at the appointment of judges, I will equate it with the appointment of the Senior Advocate of Nigeria (SAN). Now, the appointment of senior advocate is more rigorous even though, the qualifications for the appointment of judges are still the same. There should be more transparency in view of the onerous role and responsibility of a judge. It is often said that a bad judge is worse than an armed robber with a gun. So within that context, we should be careful and throw the selection process more open. There should be input of more stakeholders, if you look at the appointment of judges vis-a-vis the elevation to the rank of a SAN, eventually, it is the same qualification. You must have a minimum of ten years at the bar and then for SAN you must have certain cases in superior courts of records. In the appointment of judges, I don't think that it is that well defined. The process, I think should be made more rigorous so that the calibre of personalities on the bench can then equate the outcome of judgment and perception of judiciary vis-a-vis the judicial officers. Having said that, I also believe that the remuneration and the terms of service of judges within our judicial system need to be seriously looked at. I don't think that our judges are well paid enough to attract the best of the bar to the bench because in all ramifications, all judges are once lawyers. If the best is to be attracted, then there should be improvement in terms of their remuneration, standard of living and conditions of service. If the process is made more rigorous, you will see that even the best of the brains might not apply because the condition of service are not right. I think the two should go hand in hand - the appointment and terms of service should be taken together.We have seen recently judges referring lawyers to the Legal Practitioners Privileged Committee (LPPC) for discipline, what is the implication of this to legal practice'Basically, any body at all can refer a legal practitioner to the disciplinary committee, if he feels in his own opinion that the particular lawyer offended the rules of the profession and conduct. But as it were, it will merely remain a compliant. So the judge no matter his eminence is merely a complainant. So it does not beclouds that the Committee is saddled with that complaints to come out with its verdict irrespective of whether it is a judge that made that allegation or not. But it is right, for a judge to so do, if the judge feels that the appearance and candour of a counsel before his or her court is unbecoming or little lower than the standard expected of a legal practitioner. There is nothing wrong with that.Some lawyers deliberately delay cases by filing frivolous applications. At what point will an application be frivolous'To me, if an application is permitted, allowed or encouraged by the rule of court and a litigant takes advantage of such a process by filing such an application, I will not term such application as being frivolous. Of course, it may become an abuse if an application has been taken and a litigant finds a way to bring that application back to the judicial system. And that really underscore the point where we are all crying about frivolous application because of the time it takes ordinarily for such an application to be taken and litigant, who takes advantage of such municipal problem are now being said to be guilty of delay. I think the real problem is that of congestion of courts and the undue delay in attending to issues in our judicial process. May be one, the absence of judges within jurisdiction or the judges who are available are overwhelmed. So if you file an application really, whether it is rightly filed or not, and it was taken in two years, then the facts that there are congestions had contributed to the frivolity and the pendency of that application that could not be taken as soon as possible. So if there is really no congestion, we cannot be talking of delay and we cannot be talking of application being frivolous. If you file an application today and you are certain that in two weeks time, that application will be taken, then the frivolity of such an application is otherwise removed. As it is, even if you consider it with other jurisdictions, all these we are talking about are already taken care of in their rules. They have a way of dealing with it so that procedure of courts or proceedings of court are not affected. So if you file an application for stay for example and the court is not slowed down by other cases, you can within a confine of a season expect a decision on that application may be in two weeks, but the fact that there is congestion already and that the judges are over worked make it much more peculiar in our circumstances, when you confront such an application.Are you then saying that no application is really frivolous'It is all obvious that when an applicant files an application for example to dismiss an action for disclosing no reasonable cause of action, it is covered by the rules of the court, but we now say that the application is frivolous because it is meant to engender a delay. There is congestion and the judges are overworked. If you go to some of the courts, you will see a judge with 60 cases on a list. He is a human being, and how do you expect such a personality to cope. So the real problem is not for me the frivolity of the application but the time it takes to really get at the crux of that application. Of course, I do agree that there are some litigants, who knew that if he files this application at this point, it will take a certain judge or Justice much time to dispose of, then it serve as an impetus to file it. But I also think that if there are clear cases where the frivolity of application or abuse has been established, the concerned lawyer should be reported to the disciplinary body. But really and truly, why we talk of frivolous application is because the applications take so long to be dispensed off. If you file so many applications no matter how frivolous and you have prompt decisions on the applications, it might even serve as a deterrent to bring such application knowing that in one week, you will get your result, so what is the point doing it' And like I said, in other jurisdictions, we have such applications, but the speed with which they are taken and maybe the kind of penalty attached to the failure in such process is a deterrent. I think those are issues we should look at here and ensure that our judiciary is taken a step further.The writing in long hand by judges has been identified as a contributory factor to delays in our court system, why has it not abated and what do you think should be done to solve this problem'I think, it is a problem of infrastructure. I know that in some cases, the courts had all the facilities to record and the judges still write in long hand. Some judges who are up and doing cannot do without writing otherwise the probability is that the judge may not follow the proceeding if he can't do a little writing no matter how minimal. Also to safeguard some proceedings, some judges also duplicate by long hands in case there is a problem with the recording system and it has happened in several instances, it could be lost, it could not be traced. In terms of infrastructure, there is problem of electricity; there may also be problem to preserve it. So to such an extent you can only minimize the writing of judges. I will also advise that judges no matter how minimal should write. But we should have more judges, we should have case management in the sense that, there are some cases, which ordinarily should not go to the open court, there are cases that should be taken in the chambers. Sometimes you see long list of cases before the court that majority of them require taking applications for a leave of court to file a process out of time, then you see a lawyer going to court to waste all the time and add to the presence of lawyers in that court for that particular day. So in such instances, I think, we should encourage a system where not every case will go to open court except when there is really the need for it. Interlocutory applications could be taken in chambers and decisions given so that we don't really waste time. If they have a disagreement and goes to the appellate courts, the appellate court could also give a decision in chambers so that we make rapid progress. This way, we do away with the symbolism of mentioning the case in court and lawyers coming to appear.What of when the issue of jurisdiction is raised'If an issue of jurisdiction is raised, even in some jurisdiction, there are rules for written addresses. If the judge had read the written addresses, I think that nothing forbid him or her from giving a judgment in chambers so that the litigants take a position from there either to continue with the case or go and thrash out the issue of jurisdiction so the matter would move very fast. There is a case the Supreme Court was lamenting on which bothers the issue of jurisdiction that took 13 years to get to the Supreme court - compiling records and all others. We need to critically examine all these court processes so that we see genuine cases which people are appealing and one that is not genuine, which people who want to use that to pervert the course of justice. In my experience in practice, there was a time in which appeal, within the high court and court of appeal was oppressive. The issue became deadlocked until Justice George Oguntade came and eventually cleared the backlog and you see that appeals were heard almost timeously. The present panel at the Court of Appeal in Lagos is also being alive to the issue. Perhaps, they only need to be encouraged to do more. Basically if we remove congestion, the issue of writing long hand also might be minimized. If we sometimes remove some of the rituals of bringing the application and add punitive measures to the process that are found frivolous, they offenders would be made to pay such punitive costs before the cases can proceed.Don't you think that hearing matters at the chambers and not at open court offends the constitution'The same issue of hearing in chambers is applicable to the advance countries such as the United Kingdom. Nothing inhibits the court from hearing matters in chambers. In fact, I disagree to that assertion that hearing matters in chambers offend the constitution, it does not if the lawyers and the parties are there and every other person is heard. What I am making allusion to when I said that is that in some other jurisdictions you see cases that are adjourned to maybe 9 am , rather 10 am or 11 am, and you can see a court room being used by two , to three judges. A judge come by 10 am, he scheduled to depart by 11am, take all the cases within the scheduled period of time. All the interlocutory applications had been addressed before a day is fixed for hearing and then, he is taken to what Lagos High Court had tried to do by saying that you have a pre-trial conference. But the problem associated with that is that some judges don't want to make pronouncements at the pre-trial stage, because they might end up not being the trial judges. Some of these issues need to be fine-tuned. So if we say a court resumes by 9 and my matter is adjourned till 10 am for example, I don't need to come by 9 am. But you see lawyers going to court for 9 am and the case end up not being mentioned until perhaps two in the afternoon. Note that it is still the same judge that is attending to all these cases right from 9 am till about 2 pm . That is why I said that we should do more of case management. Not all the case must come to court all the time. By the time a court gets to 2 to 3 pm, the law of diminishing returns sets in. So, the essence of adjourning the matter to that date is defeated. It doesn't matter if a case is going up in six months time, if we are sure that the case is to be heard. There is no point giving a two weeks adjournment if it will be frustrated at the end of the day. That is why I said that there should be case management so that adjournments are minimised, once a case is coming up in court, you know that it is for business and that there is no room for adjournment. If there is going to be an adjournment, you know that the thought of it was not even contemplated. We should manage this case more for the over all interest of the judiciary.When and how will a lawyer abuse court process'That will make me to make maybe a judicial pronouncement on it. The court said that it is infinite the way and manner a judicial process is abused depending on the peculiarity. What you may consider as an abuse might actually not be an abuse and what you think that it is not an abuse might actually be an abuse. Generally, the trend that runs through an abuse of court process allegation is an attempt to pervert the course of justice, an attempt to take advantage maybe of some procedural provisions of the rules to the annoyance of the litigants and the entire judicial process. If for example, a judge had given an opinion on an issue, it is not expected that that same issue be peculated, it is not expected that the decisions of the superior courts of records are overwhelmingly against the taking of a particular step in a proceeding but you still took the step being cautious of the judicial trend at that particular point in time and the decision of the superior court of record at that time. Then it will be said that the process has been abused. But it is either here or there. We have seen process that was said to be an abuse succeeding on the long run even on the other side. So every thing is depending on the circumstances and the peculiar facts of each case.We have seen in some cases in criminal trials when judges discharge cases for lack of diligence prosecution, what really constitute diligence prosecution or lack of it'In nutshell, it means that the prosecution do not put his or her house in order. The prosecution clearly aware of the ingredient to sustain a charge and secure a conviction deliberately or inadvertently refused to put such facts into consideration before preparing the charges. In Nigeria, we have seen so many trials by the press, so many things done to prejudice the outcome of a case. We have seen so many people who had been convicted of a crime where as the evidence that is available and before the court is not enough to sustain that charge. So that is when you will say the prosecution has not diligently prosecuted a case. For example, if there is an alibi in a case and the prosecution refused to debunk it or followed lead to the extent that will debunk such an allegation, you can then said that the prosecution had deliberately bungled the case and judge is merely there to guide and supervise and see that justice is done, he is not supposed to stand in the shoes of the prosecution and do the case for the prosecution. It is the duty of the prosecutor or his team to ensure that all leads are properly followed, all evidence are properly collated and presented before the court to secure a conviction. But if they failed to do that, you cannot blame the judge and you cannot sensationalise a case and expect that the judge will rely on newspapers cuttings or reportage to secure a conviction. They are two different things entirely. The moral is that the prosecution should do his work properly and articulately investigate all claims, know that the allegation of the crime is there and that the probability of getting a conviction is high so that he does not waste precious judicial time, scarce resources of the prosecuting department pursuing shadows and at the end of it, he does not succeed in getting a conviction and then end up blaming the judge.Public hearing and probe panel, what are their judicial implications considering the fact that more often than not no conviction is secured from them'Probe panels are good if it is meant to know what had gone under or what is hidden. There had been a lot of probes in the past that as well ended up as a charade. Obviously, we have heard of the motive behind such probes, with allegations of financial inducement flying around. Like everything in Nigeria, it is just the judiciary that is being made the scapegoat and no body is talking about all these probe panels that lead to the land of nowhere and no return. For I don't believe on this because nothing good has ever come out of it. Give me of one instance where anything ever came out of the probe panels in Nigeria.Can any legal practitioner commence prosecution by the reason of the probe panel results'Prosecution is a different ball game entirely; there are so many preconditions for prosecution. I don't know whether a concerned legal practitioner will get the real copies of the probe reports, whether and he will have the consent of the Attorney General of the Federation. Those are the issues that will even border on political consideration as to get such agitation going. But if an allegation of crime has been established, there had been instances of private legal practitioners even without the consent of the Attorney General of the Federation going ahead with the prosecution. If you take the case of Dele Giwa for example, there was no probe, it was a legal practitioner who felt that he had some evidence that could nail a particular accused personality with the death and decided to take the gauntlet by initiating a legal battle. Though the battle was inchoate before he died, that does not mean that any other person who feels strongly about an issue that was revealed by the probe and feels that somebody is guilty of an offence would not take it up. It is all in the interest of the larger society. It is possible but there are so many bottlenecks and threshold in the way, which such a fellow should be prepared to surmount.
Click here to read full news..
