A Senior Advocate of Nigeria (SAN), Mr Ebun-Olu Adegboruwa, shares his thoughts with LEKE BAIYEWU on the reforms being proposed by the House of Representatives for the judiciary

THE House is seeking to prevent the courts from interfering with matters under the consideration of the National Assembly. Does this conform to the principle of checks and balances?

It is totally unconstitutional for any institution – not just the National Assembly – to seek to gag the court or seek to hinder the right to access of citizens to court or to seek to oust the jurisdiction of the court in respect of any matter under heaven. The truth of the matter is that our forefathers had fought this battle as a way of securing the interest of the minority groups. In the days when they were having the conferences in England that led to the Independence (in 1960), the minorities expressed fear that once the colonialists leave, the majority ethnic groups would swallow them up through popular elections. That is, if you vote 20 times in Nigeria, it will always be that the majority groups will always have their people winning. So, the solution then was that the institutions of governance should be strengthened to protect everybody, so that even if the majority is ruling, minorities’ rights will be protected, either by the court or other organisations established.

That is why we have these institutions – the National Assembly, the Judiciary, the Executive – so that people’s interests will be protected. And they put this in the Constitution…in Section 4(8) of the 1999 Constitution. It is stated there that the National Assembly shall not make any law – SHALL; there is an absolute prohibition – that seeks to oust the jurisdiction of the court. Also, the House of Assembly of a state shall not make any law that seeks to oust the jurisdiction of the court. It is an express prohibition. To that extent, it is a futile effort by the National Assembly to propose any law that will seek to take away any matter – whatsoever the matter may be – from the court.

The second reason is the principle of democratic doctrine of checks and balances. No democracy can survive without checks and balances. No institution should see itself as higher than the other. The institutions should be independent. The National Assembly is meant to make laws; the Executive is meant to implement policies and laws, while the Judiciary is meant to interpret laws and check the excesses of the other two arms of the government. So, if the National Assembly succeeds in promulgating any law that says if they are debating any matter, the court should not look into it, then we have created dictatorship and an arm of government that is beyond the law. Even when we had military rule, there was never a time that the soldiers ever shut down the courts. Whenever a coup takes place, the first thing that the coup d’etat would do was to dissolve the Legislature – the National Assembly and the state Houses of Assembly. But no military has ever closed down the courts. It has never happened in the history of Nigeria. So, if the military did not do it, the people that we elected into office should not ever dream of it. It should not stand. It is an invitation to anarchy and it will never work.

Do you agree that the consent of the Attorney-General of the Federation should not be required for payment of judgment debt when enforcing a garnishee order?

We agree with that. Nigerians support the National Assembly 100 per cent to remove that archaic law that was made in 1948 – the Sheriffs and Civil Process Act – by the colonialists. They used that law to protect themselves such that if you took the colonialists to court in Nigeria in those days, even if you get a judgment (in your favour), it would still require the consent of the colonialists for you to enforce it against them. And they would never grant that consent. That policy came from England where their system is monarchical. In England, they are being led by The Queen or The King and their policy is that they can do no wrong. It is that concept that they imported into Nigeria and it cannot stand in a democratic society.

From the day we got Independence, that law became archaic and can no longer be applied. In particular, Section 287 of the 1999 Constitution says the judgment of the Supreme Court, Court of Appeal and the High Court should be enforced and obeyed by all persons and authorities in Nigeria. So, if that is the case, it then becomes unconstitutional for any law to require that if you get a judgment against any government agency, you have to go back and seek the consent of the Attorney-General, even when the Attorney-General is a party to the case. It is totally ludicrous. We have been shouting for so many years: if you get a judgment against the police, you cannot enforce it; if you get one for infringement on your fundamental rights, you cannot enforce it. So, I support the National Assembly in removing that archaic section of the Constitution. They have our support 100 per cent.

What about immunity for justices and judges?

There is no need for that. Nigerians are presently crying for the removal of immunity for the governors and the President. The agitation now is that nobody should be above the law. You see what is going on in Nigeria now; nobody should put themselves in such a position to do and undo. I do not support that judges should have any immunity. There is already a kind of immunity for those judges, in the sense that anything they do while sitting in court, in the cause of delivering judgment, they are not liable. It is already in our law. But to now grant absolute immunity to them, it cannot work in our system. They should not even dream of that at all. What we are crying for now is that the existing immunity should be reviewed, how much less extending it to judicial officers. There is no need for that at all.

Should there be a timeframe within which courts should dispense with criminal cases, considering that justice can be delayed and on the other hand too, hurried delivery of judgment without proper investigation and prosecution could also lead to miscarriage of justice?

The proposal to limit the time for prosecution of criminal cases is a revelation of the failure of the administration of justice. The current Administration of Criminal Justice Act that was passed by President Goodluck Jonathan in 2015 contains a provision that criminal cases should be heard from day to day. The reason why it is not working is because there is no (adequate) funding for the Judiciary. If you have judges to hear cases from day to day, it means that there is provision for such hearings: there are enough judges. And the cases that the judges are handling apart from the criminal cases swallow up the provisions in the Criminal Procedure Act. So, even if you make a law and say that criminal cases should be heard within certain number of years, you are only going to create crisis because unless you fund the judiciary, as long as judges are writing long hands…in Lagos for instance, a judge is handling about 700 cases and he has about 70 cases in one day to handle…how do you tell such a judge to conclude any case within six months when the number of judges is smaller than the number of cases available? The reality is that what is needed in the judiciary is an urgent reform in terms of funding. Appoint more judges, provide infrastructure – let there be electricity, electronic recording and facilities that will make the hearing of cases go day-to-day. In that case, you don’t even need time for any specific case; all cases will move naturally. When you have taken care of the salaries of judges and the infrastructure…in some of the courts in Lagos, there is nowhere to sit, litigants stay outside.

I don’t think that the National Assembly is getting the proper diagnosis of the reason why there is delay in the hearing of cases. If you leave criminal cases, what happens to commercial litigations which are supposed to run the economy? I don’t think that is proper; there is no need to isolate any case for special hearing. Address the problems of the Judiciary holistically and when that is done, cases should move from time to time. The politicians isolated their own pre-election cases to be heard within 180 days. That has destroyed the Judiciary effectively because what has happened now is that other cases are gathering dust, whereas any political matter is moved quickly. Lawyers have abandoned landlords and tenants, husbands and wives, land disputes, commercial problems. So, the judiciary is almost collapsing because of that selfish legislation which they passed under the 8th National Assembly. There is no need to compound that problem. Let the government address the real issues facing the Judiciary.

How about raising the retirement age of judges to 75?

There is no need for that at all. This judicial exercise is not our own idea originally; we copied this judicial system we are practising from the United Kingdom, especially from Britain. So, there is a reason why retirement was put at a particular age, not just for judges but across the board. In the civil service generally, in most cases they retire at 60 and the reason is that a person who has served the government for a particular time should be given enough time to attend to themselves and their family. It is true that in America, Supreme Court justices don’t retire; they serve for life if they have no health issues, as long as they are capable. That system takes care of those judicial officers; that system moves smoothly. If you look at the history of judges that have retired in Lagos State, especially Chief Judges, most of them have died or they are in one sick situation or the other, because by the time a judge works for 20 years in this archaic judicial system, they are totally exhausted. So, I do not support that the age of judges be increased to 75. The 70 they are doing, we are even a little bit worried, but I think that should be the maximum. If you do that, you are going to create a backlog in the system because it means those who are there now will not retire, and there will be no room for innovation and younger ideas to come in. I commend Their Lordships for their efforts, but I don’t think that the judiciary itself is interested in that proposal. Judges should be allowed to rest when they attain the age of 65, and maximum as in the appellate court, 70.

What about each of the divisions of the Court of Appeal not having less than six judges per time, raising their number from 90 to 150?

I think it is too small. I commend the National Assembly for this, but that is just a token – a very minute token of the problems that we are facing in the Court of Appeal. That intermediate court – between the High Court and the Supreme Court – has become the burial ground of litigations in Nigeria. Once your matter goes for appeal, you should go and look for water to drink because it will take an average of four to six years. I have had cases in the Court of Appeal since 2011 with no hearing date; they are not even mentioning it at all. And it is because of the backlog, it is not because the judges are not willing to work, but they are overwhelmed. Let us take Lagos for instance: there is only one Court of Appeal in Lagos, there are about 70 High Courts in Lagos alone, there are not less than 20 Federal High Courts in Ikoyi, there is the Stock Exchange Tribunal, there is the Tax Appeal Tribunal, there is the Customary Courts, there is the court-martial for the military, there are Magistrates’ Courts and several other courts. From all these courts, cases for which appeal arise all go to the Court of Appeal. If you total all that I have enumerated, there are not less than a hundred courts and they are deciding not less than 70 cases every day. And these appeals go to just one unit. So, if you get to the Court of Appeal presently in Lagos, you will see mountains of records and files that you cannot even think of hearing at all.

So, they (National Assembly) do that for each judicial division – not less than six justices – so that they can have at least two panels sitting at the same time. But for all those busy judicial divisions, it is a joke to say that you have just two panels. Lagos deserves not less than 10 panels sitting at the same time – same with Abuja, Port Harcourt, Anambra and in all those divisions where there is congestion. I don’t think that this will address the problem. If they want to do it, they should do it holistically. There are enough resources to take care of the expansion. But I commend them for the one they have done already. They should increase it to not less than 200 justices of the Court of Appeal.

Do you agree that a judge of the Federal High Court that has been promoted to become a Justice of the Court of Appeal should be allowed to conclude cases already being heard at the lower court, as a way of preventing the cases from starting afresh with a new judge?

I agree, but only to the extent that the judge has concluded the case. It is quite a good innovation, but that means that the judge should not resume yet in the Court of Appeal until he (or she) has concluded those cases. It will not be proper for the judge to be sitting in the Court of Appeal and the High Court at the same time. So, the proviso to that will be that so long as the judge has been promoted, he should not resume sitting in his new position until he has concluded the cases he had part-heard in the High Court. This is to avoid the Orji Uzo Kalu scenario wherein a case that lasted over 12 years could not be concluded. In that regard, I support the position. But there should be a degree to which the case has been heard; it should not be for all cases that have been part-heard. The witnesses must have been concluded, evidence must have finished. They must have concluded all the hearings. It may be just to deliver judgment. The case must have progressed to at least 70 per cent in terms of conclusion.

The House unanimously voted against a bill to make the Nigerian Bar Association be involved in the nomination process for judges. Should the Bar be involved in the appointment of those on the Bench?

We know ourselves within the Bar. The lawyers will be able to say, ‘We know this person when he was practising, he is a corrupt lawyer; he used to bribe judges, he used to bribe people. This person does not have integrity, he will not perform well.’ So, we know ourselves. And it is the same system that is being used when a Senior Advocate of Nigeria is to be appointed. There will be a letter sent to his peers and people he or she had worked with in courts. Confidential letters will be sent to them, to comment on his character and integrity. Confidential letters will also be sent to judges before whom he or she has appeared before. I think the lawmakers should study the process of the appointment of SANs; it is very transparent and inclusive. All sectors of the legal profession must be involved before anybody can ever be appointed as a SAN. It is the same thing that should happen to a judicial officer. It should not be done in secret. The Bar should be involved, but to the extent that it should not be meant to scandalise people.