26 Years After, Prof. Ernest Ojukwu SAN’s Proposal for Judicial Reform Still Valid

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Just about 7 years in the Bar in August 1991 at the AGC of the Nigerian Bar Association held at Concorde Hotel Owerri, Imo State, ‘Teacher’ Prof Ernest Ojukwu SAN presented a paper titled: “EXECUTIVE LAWLESSNESS AND JUDICIAL HELPLESSNESS IN THE ADMINISTRATION OF JUSTICE: A NEED TO PLUG UP THE HOLES” at the full plenary of the AGC.

At that conference, Prof Ojukwu as a young lawyer, suggested at page 9 of his paper that: “Our only hope lies in reforming, reappraising and reorganising the judicial system not only from the point of appointment of personnel but also to the structural imbalance that affects its independence. For once, the Bar should be involved somehow in the selection of judges. Some of the structural changes we suggest are: a multiplier increase in the salary of Judges and Magistrates, an independent funding and budgetary for the judiciary, the appointment and control of supporting staff by the Judicial Service Commission, a special Code of Conduct for judicial officers, an Inspectorate committee for the judiciary, a review of the system of recording in long hand.”

The Paper

EXECUTIVE LAWLESSNESS AND THE JUDICIAL HELPLESSNESS IN THE ADMINISTRATION OF JUSTICE: A NEED TO PLUG UP THE HOLES.

BY

ERNEST OJUKWU, L.L.M(IFE), BARRISTER AT-LAW

 A INTRODUCTION:

The theme of this conference could not have been better chosen at this “eve” of the third Republic by this premier association. This is because there is a tendency by the populace particularly in the developing world to believe that government is run by lawyers. We have heard it said even by the people in government today in Nigeria that our second Republic failed by the acts and omissions of the lawyers.

This belief may not be totally far-fetched because the lawyers often play very important roles in government and the administration of justice. The beginning of modern Governance starts with the enactment of laws, prepared by a lawyer – be it a decree, an edict, an Act of Parliament or even the constitution of the land. The Lawyer, at least in Nigeria has always been a chief advisor in Cabinet. There are lawyers advising and drafting laws for the legislature. The lawyers constitute in the main the judiciary. We have legal advisers to the political parties and today it is being made mandatory that every local government in the country must appoint a legal adviser.

It is therefore clear that if the lawyer is not to blame again, we must as we have now chosen, address the theme of our conference and suggest ways out for the survival of the third Republic for it has been opined, “In determining a nation’s rank in political civilization, no test is more decisive than the degree in which justice, as defined by the law, is actually realized between one private citizen and another, and as between private citizens and members of the government”. Thus, “when we know how a nation – state dispenses justice, we know with some exactness the moral character to which it can pretend”.

It is our aim therefore to discuss critically the role of the executive and the limitations of the judiciary in the administration of justice in Nigeria and attempt to propound suggestions that can help raise our “rank in political civilization” by the enthronement of a lasting democratic experiment.

B ADMINISTRATING JUSTICE AND SEPARATION OF POWERS

There is a tendency in this paper to avoid definition of such terms as “Justice” or “Administration of Justice”.

Definitions, said Julius Stone, are “essentially mnemonics for clarification. They may be pre-ambulatory mnemonics foreshadowing elucidation to follow, or summation mnemonics recalling what has already been expounded. In either case a definition cannot fruitfully be more definite or more definitive than the exposition which it calls to mind”.  We shall in the circumstance attempt what we may call an exposition of our subject matter rather than defining.

Even at that, the term “Justice” is a nebulous concept with varied meanings in various countries and in different eras. The popular idea of “Justice” is based, even nebulously, on a sense of equality. The term is

elusive as that term “public policy”. But one thing is certain; the term “Justice” is an antithesis of arbitrariness.

To “administer Justice” is to dispense Justice. The notion of Justice is fairness and balance of competing interests. The administration of Justice aims at furthering national unity, patriotism, public security, peace, order and good government. President Babangida recently said that “the dispensation of justice… is the heart and soul of all good governments”.

It is agreed that the administration of Justice in its broad sense is involved in the exercise of every governmental function, be that function legislative, executive or judicial in nature. In this sense, every step taken by government or its agencies is measured in terms of how far it protects the welfare of the citizens and balances the competing interests. Administration of Justice in this broad sense would therefore include the fairness of the laws enacted by the legislature, the interpretation placed upon such laws by the courts and the opportunities given the courts, the even-handedness of the executive in the implementation not only the letters of the Law but in accommodating the decisions or would be decisions of the courts.

As stated earlier, all arms of government are concerned with the administration of Justice. Under the 1979 constitution (pre-military) and the 1989 constitution, the three branches of government; the Legislature, the Executive and the Judiciary are separate and distinct. This is a follow-up of the Montesquieu doctrine of separation of powers in which a distinction is drawn between the Legislature, Executive and Judicial functions.

The concept of separation of power arose from the ‘need to ensure the restraint of governmental power by dividing that power, without carrying that division to an extreme, incompatible with effective government’. A constitutional democracy thus pre-supposes a balanced system of divided or shared powers. It is only within such a system that individual citizens can ever hope to enjoy any measure of independence and freedom from arbitrariness and governmental lawlessness and thus regain the civil rights and liberties conferred on them by our Constitution.

Though the functions of the three organs are distinct, there cannot be a total separation of powers and the powers given to each other are delicately balanced by powers, given to the other two. Examples of such balance abound in the 1989 Constitution. The aim of government in spite of the separation of powers should be advancement of the common good. In which case, the three co-ordinate powers of the state should, in the words of Hon. Chukwudifu Oputa, “constitutes one brotherhood, working side by side with mutual toleration and co-operation”. We must agree therefore that “The primary end of the state is Justice – the building and the maintenance of a just society ‘where no man is oppressed’, the maintenance of the Juristic order. To this end the Legislature by the laws it passes enunciates the general norms of Justice while the Executive oversees these laws as they apply at large. But the state through the Judiciary pronounces justice in the concrete.

C THE CREATION AND MISUSE OF EXECUTIVE POWERS

(1) THE CONSTITUTION:

Section 5 of the 1989 Constitution (just like the 1979 Constitutions) vests the executive powers of the Federation, the States, and Local Governments in the President, Governors, and Chairmen of Local Government Councils respectively. Each of these representatives of each tier of Government is restricted to act only in the “area” of his authority as provided by the constitution. The 1989 constitution provides for example, that:

A “The executive powers of the Federation shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice President or Ministers of the Government of the Federation or other officers in the public service of the Federation; and

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B Shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being power to make laws”.

Similar provisions are made for the state Governors and Chairmen of Local Governments. The executive representatives of each of the three tiers of government in Nigeria are allowed and in practice do act through other officers of government. Examples are the Police, Federal Road Safety Marshals, the Army, the Customs and Excise men, the Ministers, Commissioners, Directors- General, the Prison Officials, Local Government Supervisors and Secretaries and of course the SSS and a host of other officers. All these play great roles in the administration of justice.

2 THE MISUSE:

But how has the executive faired in the administration of Justice today in Nigeria? Would it not be axiomatic to ask the executive to RESIT? There is a current trend where court orders and judgments are disrespected with impunity by agents of the three tiers of governments, where the courts are violated and intimidated, where fundamental human rights is sold costlier than the pathfinder Car and the “rule of law” is a paradigm of “rule of the might”.

We are witnesses to the police and security men’s brutality to and the constant abuse of the rights of suspects and detainees, the creation of dud offenses and the unlawful arrests and detention of innocent citizens. Our police stations and cells are so overcrowded particularly at weekends that you wonder whether all citizens have not become criminals. Or have you not heard people boasting to others that “I shall not call the police for you, I will just tell the soldiers at the camp “.

If the citizen truly carries out this threat, the effect would be what you may have to guess. The police, the SSS, the army are not alone. There are catalogues of instances by other agents of the executive, and some of them are reproduced hereunder:

The Ganiyu Oladapo Case

On September 24, 1990, agents of the Lagos State Government accompanied by armed security men, moved bulldozers into a tourist centre situated along Ozumba Mbadiwe Street Victoria Island.  The caterpillar rumbled over the property and in a matter of minutes, they had reduced the lagoon front resort to a heap of rubbish. This demolition was the climax of a dispute which began in 1986. The multimillion naira tourist centre was the property of Ganiyu Oladapo, Chief executive of Osa Investment and Property Company. But the parcel of land on which he constructed his tourist paradise was in contention. The Lagos State Government claimed the land and in 1986, it claimed that it gave Osa Investment a quit notice. Oladapo went to court to contest the government’s claim. On September 4, 1990, Oladapo filed an appeal at the Court of Appeal. He followed up the appeal with a motion praying the court to restrain the Lagos State Government from dispossessing him of the land based on the lower court’s ruling.

The appeal was pending when the government roared into the resort, sacked Oladapo and his staff, demolished every structure and set fire to the wooden rubbles. On September 27, the Appeal Court granted the prayer of the plaintiff and restrained the Lagos State Government from acting on the ruling of the High Court. It was too late. But the appeal court had also fixed October 17, 1990 for hearing the substantive appeal. Armed with the order of court Oladapo moved back into the land. In a bid to re-establish possession he put up a fence and temporary structures. On October 15, two days before the substantive appeal, an armed squad of the State government again descended on the place and tore down the temporary structures.

The Gongola State – NBA Case

In Gongola State, Isa Mohammed a Governor established another example of executive lawlessness. In 1989 he refused to swear in two new Chairmen for Numan and Mayo Belwa Local Government Councils after the Court of Appeal had upheld the decision of a Yola High Court nullifying the elections of two other persons. The Governor’s resolve not to comply with the Court order to swear in the runner-up. In the chairmanship elections in the two councils pitted the NBA against the state Government, resulting in the boycott of the Courts by lawyers.

 The Hon. Yahaya Jinadu Case

In 1984, Hon. Yahaya Jinadu, a Judge of the Lagos High Court ruled that John Oregun, a Federal Permanent Secretary should appear before him on a charge, of contempt of court. Hon. Jinadu had earlier given judgement in favour of a Federal Fire Officer, Saidu Garba who had sued the government for wrongful termination of his appointment over NECOM house fire disaster in 1983. Jinadu ordered Garba reinstated, but Oregun, then Permanent Secretary Federal Ministry of Internal Affairs refused. Jinadu then issued a bench warrant for the arrest of Oregun but this was treated with utter contempt and it was never served. The Military regime of Buhari/Idiagbon saw Jinadu’s actions as a direct challenge to its authorities and so did everything to frustrate the judicial order of the judge. These and further events in this case culminated in the pre-mature retirement of Hon. Justice Jinadu.

The Festus Iyayi- Uni Ben Case

The University of Benin authorities in 1987 evicted Festus Iyayi, National President of ASUU, Prof. Sagay and John Odita from their official quarters in disregard of an order of a Benin High Court a week earlier.

There are other familiar cases where the executive had acted in the most lawless manner. Examples are:

1 The Shugaba’s Case

2 Obeya Memorial Case

3 Ojukwu’s Villaska Lodge Case

4 Stitch v A-G Federation

5 Afolabi v Governor Oyo State

6 Aliu Bello v A-G Oyo State

7 Olayinan v The University of Lagos

8 Okongwu’s Case – Wherein he was convicted of contempt and while his appeal was pending, the then Governor Jim Nwobodo pardoned him.

9 The practice of the executive in foraging for courts that is likely to have their sympathy as in the Prosecution of Arthur Nwankwo for sedition by the Anambra State Government of Jim Nwobodo.

10 The Saidu Garba Case

We shall return to some of these cases later but for now may we pause and ex-ray the role of our learned brothers – the attorneys- General.

3 THE ATTORNEY – GENERAL

The Attorney-General who is appointed by the Chief Executive and holds on to his portfolio at the whim of his appointor is the Chief Law Officer be that for his state or for the Federation.

The 1979 constitution provides that the Attorney-General shall have power-

A To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of any offence created by or under any act of the National Assembly;

B To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

C To discontinue at any state before judgement is delivered, any such criminal proceedings instituted or undertaken by him or any authority or person.

2 In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”.

Apart from these provisions of the Constitution, the Attorney-General is the Chief Legal Adviser of Government. In all the cases and instances where governments or its agencies violated the rule of law and disobeyed court orders (even in cases of wide publicity) do the Attorney-General play His primary role- that of advising against arbitrariness? Or does the government act against proper advice?

There seem to be a consensus that some of the Chief Legal Officers do not perform. Sometime in December 1989 the Chief Justice of the Federation granted the African Concord an interview and when questioned “on disobedience of court orders by the Executive Arm of Government”, had this to say:

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“Well it is a little problem. The problem is with the Attorney General, not with us. In all the cases where Government refused to comply with such orders, the AGS advice the government that the order is illegal. You see. When a Judge acts out of Jurisdiction, it is illegal. If a Judge releases anybody detained under Decree 2, it is illegal. He has not such power. So if a judge orders someone to be released the Attorney-General will ask the government not to comply. But unfortunately, we think what should have done is to run either to the judge, tell him he has made a wrong order and he should set it aside or go to the Court of Appeal. So normally I don’t blame the government, the Attorney General who should properly advise”.

What of a situation where a bold Attorney-General advises in the best interest of justice and such advice is not heeded? Too many of us will immediately suggest that the Attorney General should resign. It might not be that easy but it is a viable option. It may be further suggested that we review the procedure for the appointment and removal of an Attorney-General.

But on their own as agents of the executive, have the Chief Law Officers (in many Cases) not brutalised and assaulted the rule of law while also recklessly abandoning some of their duties as a major plank in the administration of justice? Some States, we know are so backward in law Reform. Most backward. Has any Attorney-General ever given consent for the attachment of government property? Many governments have rendered court judgements nugatory by not paying the damages awarded against them because of the requirement of consent of the Attorney-General before an attachment of government property. Further examples of the abuse of the Attorney-General’s functions can be found in its constitutional power to enter nolle prosequi.

In one case in 1980 before the High Court of Ondo State in Akure, the accused persons were charged with murder. Because the accused persons belonged to the party in power in the state, the Attorney-General entered a nolle and the accused persons were discharged in a situation in which they would have been tried and either discharged or convicted according to law.

In Imo State was a case of embezzlement of a substantial amount of public funds. The Attorney-General had earlier appeared for the accused while still a private legal practitioner. As soon as he was appointed the Attorney-General, he entered a nolle prosequi on behalf of the said accused.

Another case happened in Kwara State. The civilian Governor had disagreed with the Attorney-General and removed him from office for reasons best known to him. He did not appoint anyone else in replacement. There was then a case pending before the Chief Magistrate’s Court at Ilorin against on Isiaka Sanni and two others, who were political supporters of the Governor and his faction of the political party to which he belonged. The Governor who was a lawyer of more than ten years standing struck a brilliant idea. He appointed himself Attorney-General and Commissioner for Justice in which capacity he signed a purported nolle prosequi, sent it to the DPP with which the case was discharged.

We may conclude this part of our paper by saying that it is a very serious matter for us to enter the third Republic with this trend of recklessness by the executive, high or low. The more serious is the disrespecting of court orders and judgements. The court is truly the last hope for justice. As was said by the Champion Editorial of 18th April 1989, for a nation which is strenuously grooming a polity that respects the rule of law, disrespect of court orders by governors is a clear indication that an aggrieved party should not fall back on the law. The paper asks “what option, other than mayhem and brutish resolution of conflict would there then be left?”

The trend at flouting court orders by the executive arm of government “is a menacing threat to enduring political stability and the evolution of democratic norms”.

D The Myth and Realities of Judicial Powers:

The judicial powers of the Nation is vested in the Courts whether created by the constitution or by statue and such power “extended to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.

It has been generally acknowledged that the judiciary is the Guardian of our Constitution, the protector of our cherished governance under the Rule of Law, the guardian of our fundamental rights, the enforcer of all the laws without which the stability of society can be threatened, the maintainer of public order and public security, the guarantee against arbitrariness, and generally the only insurance for a just and happy society.

There have been serious attempts to erode the powers of and supervision by the courts in recent times as we have been able to show hereinabove. In some cases the courts particularly the appellate courts have been able to stand firmly against the contemptuous violations of the rights of the citizen and the judiciary by the executive and have spoken out in the strongest terms against the abuse of a healthy justice administration system.

It would be recalled that in the case of Sofekun V. Akinyemi, the Supreme Court had recognised that “…it is essential in a constitutional democracy, such as we have in our country that for protection of the rights of citizens, for the guarantee of the Rule of Law which includes fair trial to the citizen… and, for checking arbitrary use of power by the Executive or its Agencies, the power and jurisdiction of the courts under the constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interference with, or a usurpation of, the authority of the courts, as aforestated, is to strike at that bulwark which the constitution gives and guarantees to the citizens, of fairness to him against all arbitrariness and oppression…”

In Saidu Garba V Fred. Civil Service Commission. Garba a former Chief Fire Officer and 19 others detained and arranged before a Chief Magistrate Court on a charge of murder. Garba sought refuge in the High Court of Lagos where his indictment was quashed and he was set free. Following this, he was interdicted by the Permanent Secretary, Ministry of Internal Affairs and suspended on 21st Feb. 1983, on the ground that he was under a criminal trial. He then challenged his interdiction in the High Court but while this was pending, the military came to power and he was dismissed from the public service. Subsequently the High Court declared Garba’s dismissal illegal, null and void and ordered his immediate reinstatement which order was never obeyed.

When the matter finally reached the Supreme Court, the court refused to be cowed by the Military might and affirmed the trial Judge’s decision. The Supreme Court did not hide its feelings on the action of government. Eso, J.S.C said in that case:

“What remains now is an examination of the act of the Respondents in dismissing the Appellant from office during the pendency of the action. Such action, I think is contemptuous of the Judiciary, which has been seized with the determination of civil rights under the constitution and which has been left unscathed by all military coups. For the Judiciary… to operate under the Rule of Law, full confidence,… must exist in that situation… in civil days both the executive and the legislature must show to the entire nation their demonstrable confidence in the Judiciary. The responsibility is greater during military rule… the Rule of Law knows no fear, it is never down; it can only be silenced…”

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In the same vain and in the same case, Nnaemeka-Agu, J.S.C. said:

“It is contrary to the letters and spirit of the constitution that any of the three arms should interfere with the other in the performance of its function. If that is allowed to happen, it will lead to chaos, lawlessness and destruction of the constitution. For the permanent Secretary to have proceeded to dismiss the appellant while his case challenging his interdiction in the extreme and a calculated interference with the court’s duty…that ought not to be allowed to stand…”

Similarly in the case of Gov. of Lagos State V Ojukwu, the Supreme Court was unequivocal on its stand on its principle of the Rule of Law. In that case not only did the court dismiss an application brought by the Lagos State Military Government since the court regarded the government’s actions in the case as being in contempt of the lower court, but also criticised it in very harsh words. It would be recalled that while a dispute over the ownership of a house in Lagos between the two parties was pending in court, the Lagos State Military Government, without an order of court, forcibly ejected Chief Ojukwu from the said property. In the words of Eso, J.S.C:

“To use force to affect an act and while under the Marshall of that force, seek the court’s equity, is an attempt to infuse timidity into court and operate a sabotage of the cherished Rule of Law. It must never be!”

While Uwais J.S.C stressed:

“…that it is a matter of grave concern that the military Government of Lagos State should be seen to disregard a lawful order issued by a court of Law. If Governments treat court order with levity and contempt the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the Rule of Law”.

At other times the judiciary had been cowed, totally mashed. Sometime in March 1990, a Shagamu High Court gave judgement in the Akarigbo of Remo Chieftaincy dispute that did not favour the state government. The government reacted by promulgating an edict which set aside the High Court order which restrained Governor Mohammed Lawal from installing Mike Sonariwo as the Akarigbo of Shagamu.

In other cases judges were sacked for not toeing the government line and for some their hope of moving to the higher bench or taking their proper precedent sealed. The case for an acting Chief Judge of Lagos State is still fresh in our memory.

Irrespective of some of the appellate court’s assertions against executive recklessness, the court’s current attitude has been described as “timid”, “unbridled cowardice, judicial ineptitude and sheer intellectual laziness” and that “the only way to curb executive lawlessness and legislative arrogance is through fearless judicial activism”. But judicial activism may not be the answer – it may even create more holes.

The judiciary is still in such a weak position in government. It does not on its own execute its orders and judgement, it does not make laws, it does not appoint itself and secure its own tenure, it does not control its own fund, it does not control the appointment of its supporting staff nor does it pay their salary, it does not provide the security at the courts; the salary of judges is too shameful; court records are still kept in long hand; judges still sit two to one court room; and the judiciary’s intervention is based on accident of litigation.

Not totally rejecting the idea of judicial activism, we think that to slow down executive lawlessness, the judiciary must keep asserting itself and live up to its fundamental role, that of protecting the citizens from the wrong and arbitrary exercise power. Let the courts not be afraid that its’ judgements and orders would not be obeyed. Let them be courageous enough to make the orders. Sir Adetokunbo has added one dimension to the solution when he suggests that “the Chief Judges of the states are wholly responsible for this. If they kicked even at the peril of losing their jobs, one will understand it… it is unfortunate that people cannot take that stand today”.

But can the judiciary really help when it is bogged down by its own indiscipline – what late Hon. Justice Nnamani described as the “challenge of credibility”. Accusations against the Bench, low or high abound. Though some of the accusations are mere rumours and false, others are real and proven. Can a person who perverts justice, show partiality, accept bribe and subvert the course of righteousness assert himself? Can a sycophantic, intellectually backward judge assert himself? Can a dishonest, immature person and perennially sick “but I shall not retire” judge assert himself? What of the lazy? We do agree with Sir Adetokunbo Ademola that” a lot is wrong with the appointment of our judges”, and so much depends on the character of the man who is appointed judge.

Incompetent people abound on the bench.

E Projections, Suggestions and Conclusion

Our only hope lies in reforming, reappraising and reorganising the judicial system not only from the point of appointment of personnel but also to the structural imbalance that affects its independence. For once, the Bar should be involved somehow in the selection of judges. Some of the structural changes we suggest are: a multiplier increase in the salary of Judges and Magistrates, an independent funding and budgetary for the judiciary, the appointment and control of supporting staff by the Judicial Service Commission, a special Code of Conduct for judicial officers, an Inspectorate committee for the judiciary, a review of the system of recording in long hand.

We must not only focus on the bench but also look inwards and address ourselves as members of the bar. What part have we played and would now play collectively and individually in creating a healthy administration of justices system in our Nation.

“The aftermath of the 1983 general elections provided a fertile ground for empirical research into the question of legalism and justice in this country. There can be no doubt that the image of the lawyer and the law he practices became badly dented during the judicial processes which followed those elections”.

Even if we have not performed such empirical research, we still do have a chance as lawyers to create tools which would be adequate to deal with “the menacing octopus” (that is to say, the maladministration of justice) which faces us now and can destroy the third Republic and our country.

The Nation owes our Courts a duty of care. As said by Hon. Obaseki, we “should not by negligence wreck it and turn round to blame the occupants. Wreck the courts and you wreck the nation. Strengthen and elevate the courts and you strengthen and elevate the nation”.

Some critiques while commenting on some attempts by the courts to assert it in judgements have lamented that the judiciary only blows “Sad” “muted trumpets”. Let them “blow the trumpet” even if “muted”. One day it would grow loud (and articulate) enough to stiffen the nerves of a reckless executive.

Henry Ikwunemere

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