In this second of a three-part investigative report, ADESOMOJU reveals that efforts being made to address the problem of the congestion of the Supreme Court’s docket are disproportionate to the scale of the problem. Politicians continue to enjoy relatively prompt attention of the court, while regular appeals filed by ordinary Nigerians are relegated to the background
Prof. Aize Obayan was employed as a lecturer in the Department of Guidance and Counselling of the University of Ilorin, Kwara State, North-Central Nigeria, in 1987.
On September 22, 1999, the university authorities sent her a letter intimating her that she had voluntarily terminated her appointment with effect from April 17, 1999, by allegedly overstaying her approved leave of absence.
The university claimed it had sent to the United Kingdom address supplied by the lecturer, a letter dated March 25, 1999, rejecting her request for the extension of her leave of absence by four months.
She however said she only received the university’s letter after she resumed for work on September 1, 1999.
She then sued the university and other relevant authorities of the institution before the Federal High Court in Ilorin, contending that her appointment was illegally terminated.
However, the court, in its judgment, dismissed her case.
Not satisfied, Obayan proceeded to the Court of Appeal in Ilorin, which set aside the judgment of the Federal High Court and granted her prayers.
But the case finally reached the Supreme Court in 2006 – that was after it had spent a cumulative period of about seven years at the Federal High Court and the Court of Appeal.
The appeal lingered in the Supreme Court’s docket for a period of over 11 years until judgment was delivered on February 2, 2018.
While Obayan continued waging her legal battle against the University of Ilorin, she was lucky to have been engaged by other institutions. But not many in a similar situation are that lucky in a country where joblessness has no respect for level of qualification.
In 2015, she became the Vice-Chancellor of Landmark University, Omu-Aran, Kwara State.
Before then, she had been the VC of Covenant University, Ota, Ogun State, South-West Nigeria.
Apex court’s scale shying away from congestion of appeals
Faced with serious congestion of appeals, the Supreme Court has been forced to put in place a scale of priority which determines which appeals deserve more urgent attention.
However, on that scale, appeals bordering on the means of livelihood of many ordinary Nigerians, such as the one that involved Obayan, weigh less than the ones that are political in nature.
The court’s justification for this scale is that political cases, involving public office-holders elected for a tenure of four years, are usually time-bound and that failure to determine such cases as quickly as possible can cause political instability.
The situation puts politicians in a position where they enjoy the attention of the Supreme Court, especially, in the pre-election, election and post-election years, at the detriment of other regular cases.
In 2013, the then Chief Justice of Nigeria, Justice Aloma Mukhtar (retd.), had to recall seven Justices of the apex court from vacation to preside over the Ondo State governorship matter for which the judgment would have been statute-barred, had the court waited till the end of the vacation.
Also, in the wake of the flurry of political appeals filed in the Supreme Court after the 2015 elections, Justices of the Supreme Court had to sit till unusually late hours, sometimes up to 11pm, in order to conclude the appeals.
Another category of appeals which come after political cases on the Supreme Court’s scale of priority include matters that involve disputes of constitutional questions between the Federal Government and the federating units, or between arms of government.
This category of matters invokes the original jurisdiction of the Supreme Court as the court of first instance.
Other categories of appeals follow in this order: criminal matters, civil appeals (with economic importance), core civil appeals (on issues of contracts, torts, and so on) and land matters.
Because criminal appeals often involve the liberty of persons, they are about the next category of cases which the Supreme Court gives attention after political cases and the rare appeals that invoke the court’s original jurisdiction.
But despite this, the story is not that palatable for convicts who still have to wait for, sometimes six years, at the Supreme Court alone, to have their fate decided.
For instance, the High Court of Ondo State in Akure, in its judgment delivered on May 21, 2008, sentenced Godwin Pius to death.
The convict appealed to the Court of Appeal which dismissed his appeal.
His further appeal, marked SC. 346/2012, reached the apex court in 2012.
It took the Supreme Court about five years to decide Pius’ fate with judgment in his case only delivered on February 26, 2017.
It took a longer period of about six years for the Supreme Court to decide the fate of Idoko Ochani, who, alongside his father, Ochani Idoko, and sister, Agnes Idoko, was sentenced to death for culpable homicide.
Idoko Ochani’s separate appeal reached the Supreme Court in 2011 but his fate was only decided with the death penalty imposed on him affirmed by the Supreme Court in the judgment delivered on April 28, 2017.
‘Borrowing from Peter to pay Paul’
The Director of Access to Justice, Mr. Joseph Otteh, said “a rough, tentative analysis of some case data” which he had scooped “produced a ballpark average of four years for the conclusion of criminal appeals in the Supreme Court (for some cases decided in 2014).”
Otteh’s Access to Justice is a justice advocacy group working championing equal and non-discriminatory access to courts of law, expand access of vulnerable people to equal and impartial justice, among other related issues.
The practising lawyer noted that “the problem, really, is the civil cases”, describing the situation whereby it takes 10 years or more for the apex court alone to determine an appeal as “a devaluation of justice”.
For him, the relatively shorter period of time political cases spend at the Supreme Court “is like borrowing from Peter to pay Paul – a debt is still unpaid!”
According to him, the ultimate solution “is to make the system work for everyone so that the electoral litigant will find meaningful justice just as the tenancy litigant will get justice.”
While retiring as a Justice of the Supreme Court on February 27, 2018, on attaining the mandatory retirement age of 70, Justice Clara Ogunbiyi expressed similar dissatisfaction with the Nigerian judicial system.
Ogunbiyi, who sat on the apex court’s bench for close to six years, from July 2012 to February 2018, gave an insight into how the preference given to political cases deprived other deserving categories of appeals the audience of the Supreme Court.
Suggesting a solution to the lopsidedness, she opined that the some political appeals should no longer be allowed to get to the Supreme Court.
She said, “In my view, however, the workload in the Supreme Court could be made less overwhelming.
“In this direction, I would suggest that there is a need to review the category of political cases that should come to the Supreme Court.
“Regular cases are relegated to the background to the advantage of political cases.
“This has occasioned inevitable delay in dispensation of justice.”
Speaking with this reporter, a prominent Senior Advocate of Nigeria, Mr. Femi Falana, lamented the burden political cases constituted for the Supreme Court.
Until the amendment to the Nigerian Constitution in 2011, governorship election disputes used to terminate at the level of the Court of Appeal.
But Falana believed that the intervention of the Supreme Court had created more problem than the solution it was meant to bring – resolution of the conflicting judgments of the panels of the Court of Appeals on the governorship election cases from different states.
‘Come-today-come-tomorrow courts’ unaffordable to the common man
A serving Justice of the Court of Appeal, Justice Emmanuel Agim, while speaking in Enugu, Enugu State, South-East Nigeria, on December 1, 2014, painted a picture of the excruciating pains justice-seeking ordinary Nigerians suffer.
Agim, in his address at the event marking the opening ceremony of the 2014 Law Week of the Enugu branch of the Nigerian Bar Association, said “the common man” could not afford the Nigeria’s “come-today-come-tomorrow courts”.
For a man who had at various times, served as a Justice of the Supreme Court of Swaziland, the Chief Justice of The Gambia, and Adjunct Professor of Law at the University of The Gambia, “justice delayed is worse than justice denied”.
He said “delay” suffered by cases in courts “renders the trial unfair, defeats access to justice, increases the cost of seeking justice, reduces the quality of justice in the final verdict or renders it meaningless.”
He added that it “dims the hope of the common man in court and exposes him to the option of a secondary victimisation suffering his primary or initial victimisation in silence without challenge as he or she cannot afford the expense of ‘come-today-come-tomorrow’ courts as the adjournment and delayed processes of our courts are commonly described.”
His concerns are strengthened by a more scathing verdict which a former Justice of the Supreme Court of Nigeria, the late Justice Niki Tobi (retd.), passed on the Nigeria’s justice delivery system as far back as January 2004.
Agim, in his speech at the NBA event in Enugu, quoted a part of a judgment delivered by the late Justice Tobi in the case of Aiguoreghian V. The State, wherein the former Justice of the apex court described the Nigeria’s justice delivery system as “scandalous, wicked and cruel”.
Expressing similar views, the Director of Access to Justice, Oteh, told this reporter, that “justice is effectively denied in most cases where a judgment only offers what is, in essence, a nominal and hollow return, a pyrrhic victory at the end of the day.”
Problems dwarf solutions
Like the late Justice Tobi, Justice Ogunbiyi, Justice Agim and Oteh and successive CJNs had always expressed sadness about the slow pace of justice delivery in the Supreme Court and other courts.
In response, efforts such as issuance of new practice directions, deployment of Information Communication Technology and introduction of new policies have been made.
In 2012 for instance, the administration of the then CJN, Justice Dahiru Musdapher, who passed on in January this year, had inaugurated the Judicial Information Technology Policy Committee tasked with overseeing the deployment of ICT to mordernise and fast-track the justice delivery system.
Successive CJNs had advanced this cause, which encompassed among others, automated court system and electronic means of filing cases.
On November 10, 2014, the then outgoing CJN, Justice Aloma Mukhtar, presided over the public presentation of the Nigeria Case Management System and inauguration of the Supreme Court’s and National Judicial Council’s Data Centres.
The data centres were said to be crucial to driving the court automated process.
Fighting the problem from another end, Mukhtar, on September 3, 2013, informed her audience that she had issued a Supreme Court’s practice direction with “the focal point” of ensuring “the expeditious administration of criminal appeals as well as the speedy determination of interlocutory appeals”.
Two years later, in 2015, her successor, the then CJN Mohammed, while talking about the same problem, said he had set up a second panel to sit on Wednesdays, in addition to the normal panel of the apex court sitting in chambers on those days.
According to Justice Mohammed, the second panel sitting on Wednesdays “is a first in the history of the court”.
He described the “additional panel of Justices of the Supreme Court” as “an appropriate response to the yearnings of all Nigerians for justice to be dispensed more quickly and effectively…”
Also in 2015, Mohammed constituted the Supreme Court Rules of Court Advisory Committee to birth the rules to be used for the proposed Supreme Court’s Mediatiation Centre, an Alternative Dispute Resolution mechanism.
Working with the Negotiation and Conflict Management Group, the committee drafted the Supreme Court (Mediation) Rules 2016 and the new Order 9A.
The apex court’s Mediation Centre, which has been declared “open” since late 2017, has yet to begin operations.
Meanwhile, on September 19, 2016, Justice Mohammed’s assessment of the impact of the measures put in place to address the problem of delays in the previous year, later showed that the results fell far below expectation.
He said in his speech during the ceremony marking the commencement of the 2016/2017, that “in the past year, the judiciary has once again had to address the perennial issue of delays in the administration of justice.”
He blamed “certain members of the Bar” whom he said “are conspicuous in utilising unethical, frivolous applications and appeals, multiplicity of actions in courts of coordinate jurisdiction and other acts of calumny to frustrate the speedy dispensation of justice.”
A year later, while speaking on September 18, 2017 during the ceremony marking the commencement of the current 2017/2018 legal year, the incumbent CJN, Justice Walter Onnoghen, again, had to bemoan what he described as “inexplicable and seemingly intractable delay in the administration of justice”.
As Mohammed did a year earlier, Onnoghen also blamed lawyers for their roles in the delays, warning them “to shun all tactics and ploys, which constitute clogs in the seemingly slow-winding wheels of justice so that they do not come to a grinding halt.”
Worried by the problem, he said he had “directed heads of courts to clamp down on both prosecution and defence counsel who indulge in the unethical practice of deploying delay tactics to stall criminal trials”.
He also issued a directive, which he said should extend to other courts, that lawyers appearing in the Supreme Court should not be more than five for each party, including the lead counsel.
This, he said, was to stop the trend of a lead counsel appearing before the courts in representation of a client with as many as 100 lawyers, consuming “space, time and more often than not, adds no serious value or serves any meaningful purpose to the case.”
He also announced the constitution of the Corruption and other Financial Crime Cases Trials Monitoring Committee to address the problem of delays in corruption cases in the country.
On November 1, 2017, Justice Onnoghen, in his capacity as the Chairman of the National Judicial Council, inaugurated the 16-man committee led by a retired Justice of the Supreme Court, Justice Suleiman Galadima.
Earlier this year, the retrofitting of a courtroom of the Supreme Court was completed.
On February 18, 2018, the CJN presided over the public presentation of the retrofitted courtroom and the Legal E-mail System.
He said that by July 16, 2018, it would become mandatory for all lawyers who had cases to pursue at the apex court to have the legal e-mail as it would be the only means of serving court processes.
The President of the Nigerian Bar Association, Mr. Abubakar Mahmoud (SAN), who is the official spokesperson for the Nigerian body of lawyers, has yet to fulfill his promise to respond to this reporter’s questions about the roles of lawyers causing delay in the justice delivery system and what his administration was doing to tackle the problem.
‘Supreme Court will get out of the logjam’
On September 19, 2016, the then CJN, Mohammed, described the Justices of the Nigeria’s apex court as “the hardest-working Supreme Court Justices in the world.”
He said he and his colleagues “must receive due ovation for the sacrifices made and deprivations endured in the performance of our onerous duties, in the interest of Justice and our dear nation.”
Mohammed was, however, quick to add that “nevertheless, we will not rest on our laurels.”
Falana also shared this view, describing the Nigeria’s apex court as “the busiest Supreme Court in the world.”
The activist lawyer went on to describe the Supreme Court as Nigeria’s “most serious in terms of commitment to judicial functions.”
He said, “For instance, I cannot remember anytime I had gone to the Supreme Court only to be told that the court would not be sitting.
“But this regularly happens in other courts.”
When contacted by this reporter, the Director, Press and Information of the Supreme Court, Dr. Festus Akande, also expressed views similar to those of the ex-CJN and Falana.
Akande said, “The Nigerian Supreme Court is about the only Supreme Court in the whole world where Justices sit everyday.
“The world should know that the honourable Justices of the Supreme Court should be appreciated.
“There was a time they sat here on a Friday, from 9am up till about 11pm.
“Instead of criticising the Supreme Court, people should appreciate the efforts they are making in making sure that the cases are handled timeously.”
He blamed the problem partly on filing of appeals that needed not to reach the Supreme Court.
Such cases, according to him, include some political cases, particularly those bordering on primary elections, which ought to be amicably settled within the political parties.
He gave the assurance that the congestion in the court was being addressed by the administration of the CJN.
He added that severe sanctions in the form of huge monetary penalties were being imposed by the apex court on lawyers who filed frivolous appeals to serve as deterrence.
Akande noted that “the current CJN has done a lot of transformations, introduced a lot of reforms and there are still many in the offing.”
He added, “The Justice Suleiman Galadima-led COTRIMCO is another major milestone.
“Now, all corruption cases will now be fast-tracked and if there is any delay is being observed, certainly, the committee will come in.
“The CJN has recorded some tremendous achievements within the shortest time.
“Certainly, by the time he is leaving, a lot of reforms would have taken place.
“We are in the process of getting out the logjam. I believe very soon before the tenure of the current CJN expires, we will come out of it.”
According to him, part of the efforts being made by the CJN was to ensure that the Supreme Court had the full complement of the 21 Justices allowed by the Constitution.
He, however, observed that being “a constitutional matter” involving all the three arms of government, the appointment of Justices of the Supreme Court “usually takes a long process.”
He added that the court would give the different arms of government time to perform their constitutional duties, adding that the immediate concern of the court was to fill the vacancy left by the recently retired Justice Ogunbiyi to make the 17 Justices the court had always maintained.
He also noted that some of the solutions to the problem of congestion of appeals could only come from the amendment of the relevant laws.
He said, “Successive CJNs have always been initiating a lot of reforms which are taken to the National Assembly. But, like I always say, no particular arm of government should be blamed, because each one should be given time so that they don’t rush.
“If you rush into issues like this, there may be some hiccups and problems. So, we are not blaming anybody.”