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« The CEO of Nigeria, PLC | Main | Of ‘Hungry’ Politicians and Protesters »

July 07, 2005

The Rot in the Nigerian Judiciary

by Prof. Chike Anamdi, New York, --- The recent allegations of the duo of Messers Ephraim Duru, Esq. and Emefor Etudor, Esq. at the Supreme Court have elicited much commentary from stakeholders, mostly in condemnation of the duo. All commentaries have been in condemnation of the impudence and impropriety of the action of the counsels. These commentaries have dealt appropriately with this issue of contempt of the court.. This treatise will look at the structural anomalies that have distorted the Nigerian judiciary as illustrated in the current impasse at the Supreme Court.

The current paralysis in the Supreme Court best illustrates the structural deficiencies of the Supreme Court as presently constituted:

1) A Supreme Court of 21 Justices constituted into four or more panels is unwieldy and prone to discordant voices.

2) A Supreme Court with compulsory retirement age of 70 is a waste talent and a breeding ground for insecurity and booth-lickers and.

3) A Supreme Court where the position of the Chief Justice is determined simply by seniority is a cesspool for cutthroat competition and a breeding ground for mediocrity.



Every commentary has presupposed that the Supreme Court and the Justices of the Supreme Court is a breed of immaculately conceived angels. They do not operate in vacuum. They are Nigerians living among us and under the same societal pressures that have shaped present day Nigeria. We have seen what is happening in the lower benches and the Appellant Divisions. The election Tribunals have been eye-openers.

Not even the motherland of the rule of law has been spared of the embarrassment of corruption in its judiciary. Even a Lord Chancellor of England, Lord Francis Bacon has been convicted of corruption. Another, Lord Macclesfield was reputed for his prolific demands for pecuniary aggrandizement.

Justice Uwaifo, then a Justice of the Supreme Court, first drew the nation's attention to the rot in the judiciary and in the Supreme Court at his valedictory party before his retirement. He even specifically accused the Chief Justice of awarding contracts to his OWN wife and concluded by lamenting that some justices of the Supreme Court are not worthy to be there! Justice Uwaifo, a man of courage and brave words is the prophet, who predicted the present malaise in the nation's judiciary and in the Supreme Court in particular. Many at that time went for his jugular, calling him all types of names- even as the present day prophet of doom!

I am not privy to the facts deposed to against the CJN and I have no way of knowing their veracity or otherwise. But, the problem in the Supreme Court did not originate with Duru and Etudor. The duo did not leak judgments of the apex court weeks before they were delivered. The duo did not burgle the premises of the Supreme Court. There is something wrong when the CJN gets on the phone to contact lower judges in the states in a matter not yet before his court and which may sooner or later appear before his court. How can he later be trusted to be dispassionate when he had already taken a position before hearing all the parties? Did he hear from BOTH parties before his intervention? Does his administrative oversight extend to partisan intervention inlitigations in state courts and to disputes that might end up in his court?


THE COMPOSITION OF THE SUPREME COURT AND THE FINALITY OF ITS JUDGMENTS

The Constitution of the Federal Republic of Nigeria, 1999 and the Rules of the Supreme Court 1999 provide respectively for the finality of the determinations of the Supreme Court. Order 8 Rule 16 of the Supreme Court Rules provides:

The Court shall not review any judgment, once given and delivered by it save to correct any clerical error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied, when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied nor shall the operative and substantive part of it be varied and different form be substituted.

Oputa, JSC as he then was, in Adegoke Motors v Adesanya (1989) 3 NWLR (Pt.109) 250 at 274-275 stated it succinctly:-

We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. See also the dictum of Justice Esho in Adigun v AG. Oyo State (No. 2) 1987 2 NWLR (pt. 56) 197 at 214-125.A ruling by the court aught to be final in that particular dispute!

Once one panel starts reviewing the actions of another panel, it is a call for disaster. The instant case was first mentioned in the Supreme Court on October 10, 2001 before a panel

in which Justice Kabiri-Whyte et al refused the application to abridge the time of briefs. Subsequently, the CJN constituted another panel under Justice Belgore which dismissed the appeal for want of diligent prosecution on February 13, 2002. Justice Belgore panel dismissed the interlocutory appeal under Order 6 Rule 3(2) of the Court of Appeal Rules, which provides that:--

Where the appellant has failed to file a brief within the period prescribed by this Order and there is no application for extension of time within which to file the brief, the court may suo muto, subject to the proviso of Rule 9 of this Order, proceed to dismiss the appeal in chambers without hearing argument.

Without equivocation Honda Place was in default in filing its brief of argument at the time the Justice Belgore panel dismissed the appeal. It had ten weeks from October 10,

2001. On February 13, 2002 when the dismissal was issued. Honda was two months in default. There is therefore no question that the ruling was proper.. Based on the principle sit finis litium it had inherent power to strike out any proceedings for want of prosecution, an inherent power given force by Sect. 6(6) (a) of the Supreme Court Rules.

The reference to Chime v Ude (1996) 7 NWLR (pt. 461) 379 suggesting a period of one year was is only advisory and not mandatory in the light of Rules 9 and 6 as stated above. Besides, even if the case is accepted as a precedent, the court may of course overrule its earlier decision of Chime v Ude under Order 6 Rule 5(4) in a subsequent case.

In reconstituting a fourth panel in February 2004, the CJN is indirectly indicting Justice Belgore, who headed the panel that dismissed the appeal; it is not surprising that the head of the panel (Justice Belgore) felt miffed and disqualified himself. This would have been enough to cause the enmity between the brother justices. I am not persuaded that Justice Belgore disqualified himself this time because he was a friend of the Respondent, unless the friendship originated only between 2002 and 2004.It will not be surprising if the best of friendship did not outlive such a betrayal.

With the suit of one Mr. Reginald McPepple on behalf of the Ikwere and Ijaw Communities in Rivers State against the CJN, the question remains: why did the CJN not disqualify himself from the Globe Motors v Honda Place? Why did the CJN not see the public opprobrium coming? Why did he insist on sitting on this case? No clearance from any panel can remove the cloud from any final judgment in this – not, if there is a three –to- two majority decision as already published in the press.

Chapter. VII Sect. 230(2)(b) of the 1999 Constitution provides for up to 21 Justices of the Supreme Court. Sect. 234 provides that only five justices or seven are needed to sit on a case. This means that at any given time there may be up to four panels sitting.

If the Supreme Court will speak with one voice as the last legal authority in the land, it ought to have only one panel deciding each and every case before it. Justices should not retire while ceased of a case: they must hear each case to the end or have the case heard de novo by another panel of the court as in the United States of America.

I have read that the toll of the Justices of the Supreme Court is due to their work load. Nothing prevents the use of Section 233(4) of the 1999 Constitution in pruning down the number of the cases. The Supreme Court of the US liberally makes use of this provision. Litigation in Nigeria is only a fraction of the volume in the US and yet only nine Justices in the US handle each and every appeal before it. Most of the work is done by the clerks. A panel of the US Supreme Court does not sit reverse a decision of another!


COMPULSORY RETIREMENT AGE OF JUSTICES OF THE SUPREME COURT

As in every profession, the judge matures with age and experience. The best decisions written by the best brains in the profession have been in their twilight years. A judge who is burdened with financial considerations of retirement years is not an independent judge. A judge who is burdened with the politics of advancement or succession is not a free judge. A judge who has run his course and is divested of all ambitions, financial and professional insecurity is the judge, who will give a bold and honest decision any day.

The Nigerian landscape is littered today with retired justices in the prime of their professional life. How many retired justices of the Supreme Court do we have today condemned to scavenging for contracts and government patronages? A retired justice of the Supreme Court cannot go back to legal practice before magistrate courts, High courts or former colleagues at the apex court. He has no other calling unless his community appoints him a traditional ruler. His emoluments are not such that he can exist on them!

The Derivative Front in their petition against the CJN to the President attached four exhibits. The petition alleged that the CJN had been honest before now, but due to his impending retirement, he has started amassing wealth through the abuse of his office. Can you imagine the pressures on a CJN who is retiring, but has young children still in school from late second marriage or polygamy? This situation was indirectly addressed in the CJN response to the charges against him.

Indeed nothing could better substantiate the need for a life tenure of judges, especially at the apex court than the petitions of the Derivative Front.

Supreme Court Justices should be appointed for life subject to impeachment and removal for physical or mental impairment as obtains in the system we are copying.


THE APPOINTMENT OF THE CHIEF JUSTICE

The appointment of the Chief Justice of Nigeria should not be based on seniority. It is neither a traditional stool nor a chief priest appointment. It should not be a promotion from one school class to the other. Not every Justice of the Supreme Court is a Chief Justice material. The Chief Justice is not only the head of the judiciary; he is the embodiment of all that is noble in the third arm of the government. The chief justice should be an academia, a prolific writer, a leader, and an administrator. He should be serene, wise, temperate and above all a consensus builder.

Justice Omotunde Ilori formerly of the Lagos gave a graphic example of the internecine internal politics of succession in Lagos State. Two feuding friends for the headship of the Lagos judiciary decimated each other and both ended up dead with none getting the post substantively. He also detailed the same scenarios in Osun and Oyo States. The elevation of a judge to the headship of a Division should be based on qualification, temperament and merit and not simply on seniority. Preferably, a chief judge or Chief Justice should be appointed from without to inject fresh blood and new ideas.

A situation where we produce Chief Justices on a production line does not do the Supreme Court any good. The current CJN will be retiring next year. If the seniority rule prevails, his predecessor will be Justice Belgore and he will be due for retirement in a few months! Who is served by such attrition? In two years there would have been three CJNs!

If we wish copy other constitution, we should be wise enough to build on their experience and not make a caricature of a noble document!

Prof. Chike Anamdi, M.D.
canamdi@aol.com

Posted by Administrator at July 7, 2005 12:59 PM

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