Some radical measures were announced at the opening of the 2017/2018 legal year by the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen to tackle delays in the determination of high profile corruption cases. He directed heads of courts to, among others, designate one or more courts as Special Courts “solely for the purpose of hearing and speedily determining corruption and financial crime cases”. JOSEPH JIBUEZE examines the extent of compliance with the order.
GOING by the remarks of the Chief Justice of Nigeria (CJN) Justice Walter Onnoghen in at the opening of the 2017/2018 legal year, the judiciary has a critical role to play in the fight against corruption.
Not a few Nigerians lauded the reforms outlined in the CJN’s address, which they believe would tackle the problem of delays in the determination of cases, especially corruption-related matters.
Several high profile corruption cases, which began more than a decade ago, are still pending in some courts. To deal with the problem, the CJN unveiled several strategies.
The CJN said the judiciary was also concerned that most of the corruption cases, even those filed in the early days of the President Muhammadu Buhari administration, were still dragging.
Admitting that the judiciary’s image has been battered, he said: “We must not lose sight of the indispensable role of the judiciary in the fight against corruption. Corruption continues to place the judiciary in the eye of the storm, but, we cannot allow that to deter us or weaken our resolve.
“It is regrettable that the image of the judiciary has been tarnished by the notion that the Nigerian judiciary is bedeviled by corrupt elements, hence the need for an image-building parade. We must accept that acts of misconduct of a few rub off on the rest of the judiciary and create the impression that all judicial officers have their hands soiled with the proceeds of corruption.”
According to him, the judiciary was not oblivious of public concerns on the very slow speed with which corruption cases in particular are being heard or determined.
“Although the Administration of Criminal Justice Act (ACJA) contains many commendable provisions aimed at speeding up the process of criminal prosecution generally, it is clear that we still need to employ more strategies to support and strengthen this law in fast tracking the criminal justice system.
“In this regard, we have directed all heads of courts to compile and forward to the National Judicial Council (NJC), comprehensive lists of all corruption and financial crime cases being handled by their various courts.
“They have been directed to designate in their various jurisdictions, one or more courts, depending on the volume of such cases, as Special Courts, solely for the purpose of hearing and speedily determining corruption and financial crime cases.
“Where such cases come on appeal, to either the Court of Appeal or the Supreme Court, special dates on each week, shall be fixed solely for hearing and determining such appeals.”
Justice Onnoghen announced the constitution of an Anti-Corruption Cases Trial Monitoring Committee (COTRIMO) to monitor and effectively enforce the policy.
He saddled the committee with, among other things, the responsibility of ensuring that both trial and appellate courts handling corruption and financial crime cases key into and abide by judiciary’s renewed efforts at ridding the country of the cankerworm.
Level of compliance
With dockets extremely full, most courts have been unable to focus solely on the anti-corruption cases as directed by the CJN. However, there has been some level of compliance by heads of court following the CJN’s directive last September 18.
Lagos High Court
In compliance with the CJN’s directive, the Chief Judge of Lagos State, Justice Opeyemi Oke, inaugurated four special courts on February 1.
She said there were no fewer than 500 financial crimes currently pending before the Lagos State High Court, most of which had been transferred to the special courts for expeditious hearing.
Her words: The “Special Offences Courts” were inaugurated at the Ikeja Division.
“We, in Lagos State and the Lagos State Judiciary, in particular, have taken the bull by the horns and implemented the Honourable CJN’s directive by designating four courts as Special Offences Courts to hear corruption and financial crime cases.
“We believe strongly that the special courts shall fast-track the trial of these types of cases and encourage the EFCC and other relevant bodies like the ICPC to expedite the investigation and prosecution of such cases.”
Federal High Court
Unlike the Lagos State High Court which set aside a building christened the “Rosaline Omotoso High Court Complex” for the special courts, the arrangement at the Federal High Court’s arrangement remained unclear.
So far, no official announcement has been made on the designation of any courts as special corruption courts.
But five judges have reportedly been designed to handle such cases in the Lagos Division of the Federal High Court. Three judges were designated in Abuja Division, it was learnt.
The judges do not “solely” handle corruption cases. On a single day, their dockets include commercial and civil cases which they had been handling before their “new” assignments.
Some of them adjourn high profile cases to days they would not clash with other cases, while some assign specific time to such cases. However, the judges are still saddled with several other cases.
It was learnt that new cases on bordering on corruption will only be assigned to such judges.
COTRIMO begins work
COTRIMCO, led by a retired Justice of the Supreme Court, Suleiman Galadima, met with 26 judges handling corruption cases in various courts in Lagos last month.
Since its inauguration on November 1, last year, the committee has received details of over 2,300 corruption cases across the land.
As part of its duties, COTRIMCO met with the judges handling corruption cases. It met with judges of the Lagos High Court, the Federal High Court and the Court of Appeal on separate days between March 26 and 28.
Among the 26 were seven judges of the Lagos State High Court; 11 judges of the Federal High Court; and eight were Justices of the Court of Appeal.
The Lagos High Court judges, who met with the committee, were: Justices Mojisola Dada, O.A. Williams, S.O. Nwaka, S.O. Solebo, O. Oshodi, and Lateefa Okunnu.
The Federal High Court judges at the meeting include Justices Mojisola Olatoregun, Abdulazeez Anka, Mohammed Idris, Rilwan Aikawa, Babs Kuewumi, Muslim Hassan, Ibrahim Buba, Ayokunle Faji, Oluwatoyin Oguntoyinbo, Hadiza Shagari, and Chuka Obiozor.
Justices of the Lagos Division of the Court of Appeal who met separately with the COTRIMCO members were Justices Jamilu Tukur, Ugochukwu Ogakwo, B.O Georgewill, A.O. Obaseki-Adejumo, Tijani Abubakar, Joseph Ikyegh, and Yargata Nimpar.
Why special courts
Observers believe that with special courts, cases would move faster as judges could concentrate solely on such cases and effectively implement the ACJA, which provides for day-to-day trial and restricted adjournments.
They believe that better progress would have been made had special courts been integral part of Nigeria’s legal response to corruption.
Malaysia and Singapore are among countries that have used the special court strategy to deepen their anti-graft war. Malaysia is said to have 14 of such courts.
In the Federal High Court, no judge “solely” handles corruption cases presently.
In Lagos, most of the high profile cases are before Justice Idris, who also handles commercial and civil cases.
The cases on corruption before him involve those of former governors Orji Uzor Kalu (Abia) and Rashidi Ladoja (Oyo); former Chief of Air Staff Adesola Amosu, former Independent National Electoral Commission (INEC) chief, Christian Nwosu and former aide to ex-President Goodluck Jonathan Dr. Waripamo-Owei Dudafa.
The case of former ministers Femi Fani-Kayode (Aviation) and Mrs. Nenadi Usman (Finance) are pending before Justice Aikawa. That Mrs Jumoke Akinjide (former FCT Minister) is pending before Justice Hassan.
Justice Idris usually fixes some of the trials for 1pm on the adjourned dates, by which time he would have dealt with other civil and criminal cases pending before him.
But the cases still suffer long adjournments because the courts’ diaries are always full, making it impossible to hear the cases daily.
Some defence lawyers seek long adjournments and sometimes, the courts indulge them by acceding to such requests.
For instance, the case of Fani-Kayode and Mrs. Usman was adjourned until May 2, 3 and 4 despite protestations by the prosecuting counsel. No earlier date could be agreed on because of a full docket and because of the defence counsel’s insistence that their diaries were full. The judge even had to impose an additional day on the counsel.
Justice Helen Ogunwumiju of the Court of Appeal urged judges to take firm control of their courts to guard the judiciary against becoming the weakest link in law enforcement.
She said that trials sometimes got so “complicated” and “hydra headed” because judges allowed lawyers “to run the show”.
According to her, a judge should not grant an adjournment on the basis that a non-available Senior Advocate of Nigeria (SAN) would prefer to handle a case himself. The SAN’s have qualified and competent junior lawyers who should be allowed to handle cases on their principals’ absence.
She told judges: “Don’t allow anyone to abuse your leniency. Don’t be fearful. Part of being a SAN is to have a junior.”
The Justice noted that due to lack of firmness by judges, the trial process is sometimes hijacked and judges become helpless “in the face of various manoeuvres of the defendants and sometimes their high-powered expensive lawyers.”
Justice Ogunwumiju said that in no circumstance should judges grant stay of proceedings pending appeal in criminal trial. According to her, the pace of appeal litigation is slow, arduous and discouraging.
She said judges must be careful not to be swayed by “brilliant” arguments of counsel to grant perpetual injunctions against prosecution, adding that granting an injunction stopping someone’s arrest or prosecution is like tying the hands of 180 million Nigerians from prosecuting one man.
“I urge my Lords: Be careful in grating injunctions that appear to bind the hands of the executive. That would be threading dangerously on the executive arm of government whereas the judiciary is supposed to enforce the doctrine of separation of powers,” she said.
The Court of Appeal Justice urged members of the Bench to always remember that justice is not just the application of bare law but an instrument of social justice and positive social change.
Effective implementation of the ACJA
Presidential Advisory Committee Against Corruption (PACAC) chairman Prof Itse Sagay (SAN) regretted that some judges still adjourn corruption cases for more than the maximum of 14 days stipulated by the ACJA.
Sagay said: “There have been cases in which judges have adjourned to give rulings in interlocutory applications instead of waiting for the day of judgment on the substantive matter to read both ruling on the interlocutory application and judgment on the substantive issue of corruption.
“In my view, such lapses constituted gross misconduct deserving of sanctions by the NJC.”
In the same vein, Justice Ogunwumiju noted that Section 396 (7) of the ACJA provides that “in all circumstances”, the court may award reasonable costs in order to discourage frivolous adjournments.
“My humble interpretation is that where the court notices that the prosecution or the defence seeks frivolous adjournments, it may award costs against the state or prosecutorial authority.
“Where the defendant is asking for adjournment for frivolous reasons, the court should revoke the bail and give good and lengthy reasons for doing so. Let the defendant go on appeal before or after the trial because the court revoked bail for good reasons,” Justice Ogunwumiju said.
She urged judges to be get acquainted with the ACJA and other laws such as the Evidence Act, as according to her, ‘an ignorant judge is a calamity for the innocent’.
“We must take back control of our courts. We are dominus litis (master of a suit) in our courtroom. I have never been able to understand how any court would allow counsel representing a client get the opportunity to dictate the tune in the courtroom.
“The law has given the judge the power to dictate the tune for lawyers and litigants to dance to. The judiciary cannot afford to allow itself to become the weakest link in the enforcement of our laws because the wheels of justice grind so slowly,” she said.
A professor of law, Yemi Akinseye-George (SAN), who played a key role in coordinating the various processes that led to the passage of the ACJA, said more still needed to done towards its effective implementation.
He said: “The Act has not yet fully realised its objectives of speedy trial. The necessary resources needed to ensure proper implementation of the ACJA have not been provided by the government.
“Several of its laudable innovative provisions have not been given effect. Investigators and prosecutors need to strengthened and challenged to give full effect to the Act. Relevant data mandated by the Act are not yet being collated. So, there is still a large room for improvement.”
Akinseye-George said there was need to strengthen and monitor the work of investigators and prosecutors to ensure they take water-tight cases with solid evidence and witnesses to court for prosecution.
“There should be proper coordination between the Office of the Attorney-General of the Federation and the prosecutorial agencies. Then a solid witness support and protection system should be put in place especially in regard to high profile cases.
“Electronic recording of proceedings should be introduced urgently beginning with the specialised courts such that the practice of starting part-heard cases de novo should cease. The new judges can watch the previous proceedings and continue from there.
“Judges too should be well motivated. Their salary should be increased and their working conditions transformed. Ten per cent of funds and assets recovered should be channelled toward improving the justice system. A sound justice system will strengthen the economy and the political system.”
He urged the President to set up a high-powered national committee under the Vice President with a mandate and resources to turn around the Justice sector.
“The Vice President is the foremost justice reformer in the country. The country should take advantage of his being in government to turn around the sector. The Attorney-General of the Federation must be part of the Presidential Committee to turn around the justice sector.” Akinseye-George recommended.
Observers believe that an effective judiciary is a powerful weapon against corruption, even as there is still much to be done to strengthen it for the anti-graft war.
Experts say the special court system must go hand in hand with broader judicial reform. Fair judicial salaries and pensions, Transparency International says, make court personnel less vulnerable to bribery.
These, observers say, should reflect experience, performance and an honest track record.
Akinseye-George spoke of the need to motivate judges better and improve their working conditions.
He said: “The Nigerian Bar Association (NBA) and the Body of SANs Nigeria and indeed all lawyers must do more to protect the judiciary. The welfare of judges must be looked into urgently.
“Several of them have been on the same salary scale for decades. New judges are paid the same salary as the senior judges. That’s highly demoralising. The NBA should set up a strong committee to advocate and push for significant improvement in the welfare of judges.
“The politicians will not do it because they fear a strong, independent and incorruptible judiciary which cannot be easily compromised.”
Stakeholders have also emphasised the need to deal more decisively with corrupt judges.
A former lecturer at the law school, Dr. Kole Abayomi (SAN), said the principle that he who asserts must prove should be reviewed.
He said: “You have a judge, whose salary is N9 million a year. You found out that he has in his possession, about N150 million that year. It’s difficult to prove corruption cases, but I’m just saying: why don’t you do it the other way round?
“If you are found with some amount of money that cannot be sustained by your earnings, the onus is on you to prove how you got it. We do it for people who receive stolen goods.
“So, if you do it that way, a judge with plenty of money and you charge him to court, then he should now prove the source in court. He could have got it by inheritance, by other means, but let’s him prove it.”
No longer business as usual
The judiciary is not relaxing the efforts to restore its pride. The CJN said he has directed the courts at any level to award punitive cost for frivolous litigation or delays caused by counsel.
Judges, he said, must now sit in their courts from Monday to Friday from 9am to at least, 4pm.
Some of the key reforms he has so far initiated are: establishing new modalities for appointment of judicial officers; tightening judicial discipline and regulations; and fashioning out a speedy way to clear backlog of cases.
He plans to constitute more committees to investigate allegations against judges, while he has devoted 20 per cent of Judiciary Budget to COTRIMCO.
All travels outside Nigeria by judges will now be with his permission after an application would have been made.
It is believed that an effective implementation of the ACJA, improvement of judges’ welfare, use of recording devises as against long hand writing, and more firmness by judges, among others, would ensure speedier determination of cases.
A Lagos lawyer, Jonathan Iyieke, said: “The Bench and the Bar must work harmoniously to weed out the ugly trend of delays that has hobbled our judicial system. Unless all hands are on deck, the powers conferred on the Judiciary by Section 6 of the 1999 Constitution would be under perpetual mockery.”