Biennial All Nigerian Judges Conference 2021 : Impunity, Mendacity , Truth And Way Forward

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By Malcolm Emokiniovo Omirhobo

I have painstakingly   read the addresses  of Honourable Dr. Justice I.T Muhammad, the Chief Justice of Nigeria (CJN) and Chairman of the  National  Judicial Council (NJC) and  President  Muhammadu Buhari  represented by Vice President Yemi Osinbajo SAN at the  just concluded 2021 Biennial All Nigerian Judges Conference. To a large extent  I find them to be  self serving ,   misinformative  and hypocritical

On Monday the 15th day of November , 2021  I had two public interest cases at the Federal High Court , Abuja  for which I was issued hearing notices . The counsel representing me went to court prepared only to be told  by the registrar that  both cases were not going on because  of the all judges conference which commenced same day.  On Tuesday and Wednesday four pro-bono cases at the Lagos State High did not also go on for same reason

Despite the ample time in its hands  to   plan ahead   for the conference , the courts  were not courteous enough to notify lawyers and the Nigerian public that they will not be sitting. The  courts have my phone number and email address to notify me that my cases were not going on  but refused  to do so out of what I  consider to be  sheer  impunity. The unnecessary waste of time , expenses  ,  pain and agony I suffered without the judiciary batting an eyelid out of impunity  is what thousands of Nigerians nation wide suffered through out  the  just concluded all judges conference . This omission on the part of the courts , I must say  is inexcusable.

In the president’s address,   his    assertion  that it is  imperative for the judiciary to be free from all forms of interference while maintaining a high level of responsiveness, professional standards and integrity is no doubt true.   But  I ask how possible is this with an executive arm of government  that  has dragged the rule of law in the mud,  destroying  virtually all mechanism, process, institution, practice, code or norm that supports the equality of all Nigerian  citizens before the law?

In truth the president’s  efforts  to  ensure that   the judiciary is well funded    is commendable but I ask of what use is a spineless financially strong judiciary occasioned by an executive arm of government with impunity   that  refuses to obey court orders and  condescend so low as  to bullying,   harassing , attacking , coercing  and intimidating judges ?The 2016 , raid on the homes of some senior Nigerian judges via a sting operation by the Department of State Service (DSS),  the illegal and unlawful   removal from office in 2019 of a sitting Chief justice of Nigeria   via a motion exparte  with the active  support of  the National Judicial Council (NJC)  and the Federal Judicial Service Commission (FJSC) and the attack on  Mary Ukaego Odili, Honourable  justice of the Supreme Court of Nigeria , residence  by security agents are good examples of the affront and incursion on the independence of the judiciary by the executive arm of government .The last time I checked this government has disobeyed over fifty one  Court Orders. The Government pick and choose which court order to obey and this leaves the public  with the  perception  that court orders against the government are worthless and useless and that   government officials are above the law

In view of the foregoing , I dare ask again whether it is  not hypocritical and ludicrous for a government   of absurdity and arbitrariness typical of  despotism, absolutism, authoritarianism, and totalitarianism to claim to fight for the independence of the judiciary?

The president was right in  praising   the leadership of the judiciary for taking    proactive stance  to tackle the menace of conflicting orders handed down by courts of coordinate jurisdictions . But I ask how does that impact on the common man because  the cases referred to  are political cases  and cases of the high and mighty    not the regular everyday cacophony  of orders and judgements, characteristic of the Nigerian judiciary which go unnoticed .

The president praises  for the CJN revolutionizing the process of selection and appointment of Judges without details or proper explanation  to me makes no sense . Today it is an open secret that appointment to the bench is to a large extent  not based on merit but political  and other extraneous considerations. If you want to be a judge  you must know somebody or somebody who knows somebody . Small wonder  why we may never again  have the likes of Chukwudifu Oputa , Chukwunweike Idigbe, Anthony Aniagolu ,Kayode Eso, ,Ayo Gabriel Irike, Augustine Nnamani,Justice Victor Ovie-Whiskey, Samson Odemwingie Uwaifo

Michael Ekundayo Ogundare, Idris Legbo Kutigi etc in the bench anymore . The Justices just mentioned were some of the  great men  of high intellectual capacity who held their own fearlessly with their integrity intact  through out  the military rule in Nigeria  . Small wonder why today in fairness to a very few fine judicial officers , we have many square pegs in round holes in  the bench who have no business being there at all in the first place .  Small wonder  why we now  have judges who   adjourn ruling for simple motion exparte for an  order for  substituted service after several adjournments .  Small wonder  why we now have judges  who lacks discretion. Judges that do not have the mind of their own , so lily livered and afraid   to make orders because it involves the executive , a big shot or a powerful group . Without mincing words , I dare say that the reason for executive impunity , rascality and recklessness in Nigeria today is the shy , timorous and comprehensively  cowed  Nigerian Judiciary.  Majority of our judges finds it impossible to interpret the Nigerian constitution when it involves the executive and it’s agencies especially  the Military . Many Nigerian judges will either go technical or  ensure that they dodge, delay or frustrate  cases on the interpretation of the constitution especially Public interest litigations until they become nugatory ,  overtaken by events or  at best  become  an academic exercise .

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In his address , the President recalled that in 2019 when he addressed  the gathering,  of judges  he stressed the need for the  implementation of measures that will ensure speedy dispensation of justice in the country through the dual-track of removing administrative bottlenecks in the judicial process and adopting modern time-saving technology . Without being pretentious I make  bold to say that nothing has significantly  changed since then and that the bottle necks are still there . To crown it , the judiciary like every other public institution in Nigeria  have  neglected to whole heartedly  embrace technology because of  its  cost implication , lack of will power ,  impunity  and corruption.

Talking about  the Covid 19  pandemic,  it is true as pointed out by the president that the courts in several jurisdictions  issued  Practice Directions for the conduct of court proceedings  and that there were  remote hearing of cases by virtual  means . But  I ask to what end is that , when   the very few cases heard were selected    political  and high profile cases that  concerns the high and mighty at the Supreme Court and Court of Appeal  level .During the Covid 19 pandemic , virtually all of our  High Courts and other courts of coordinate jurisdictions  ,  magistrate courts , Sharia courts and customary courts,  the judicial turf of the common man where under lock and key.

The electronic filing of court processes, service of hearing notices via email addresses and mobile phone numbers of counsel, and e-payment of filing fees are not   new to the Nigerian courts .  In fact  technology has been introduced to the Nigerian judiciary over  two decade ago with much fanfare and funding and has since then been  on the front  burner but regrettably and unfortunately  apart from the e- payment that is used by the government to collect revenue the others  are seldomly  used. Imagine , during  Biennial All Nigerian Judges Conference 2021 the courts with impunity  could not  pass simple  information through text message and email   to lawyers that  their cases  will not be going on. Consequently practically  all the State High Courts and Federal Capital Territory (FCT) High Courts numbering about 1,299, the    Federal High Courts numbering about  76, the National   Industrial Courts numbering about   31,  Sharia Court of Appeal and Customary Court of Appeal at the States and FCT ,  Court of Appeal numbering about 72   and Supreme Court of Nigeria were abruptly  shut down .  Similar  scenario  played out during the last  NBA conference  not  to mention the ridicule, frustration and  humiliation lawyers and the public  are made to  suffer  in the hands of security operatives  as a result of  the Federal High Court, Abuja  neglect with impunity to notify them that their cases are  not going on, on the  days scheduled  for the hearing of  Nnamdi Kanu’s case . The simple use of email or text message would have averted these  ugly situations.

The claim that  relevant  devices were installed to achieving e court proceedings is not true . On this note,  I am respectfully asking the Presidency  and Judiciary to provide the returns on cases heard  and evidence of the installation of the  devices in courts  during the during the Covid 19 pandemic.

To be candid our courts are still very much congested of cases because the judiciary like other institutions in Nigeria have refused to accept and apply technology . Lawyers cannot in the comfort of their offices file court processes like lawyers do in cases at the ECOWAS court .  They  must be physically present in court under excruciating conditions to   make e payment and file e  court processes.  Except in Lagos where e filing is made compulsory in virtually all parts of Nigeria , the filing of court processes  are still  to a very large extent done  manually.  Worrying too is the fact that the travel time to-and-from the court for litigants, counsel and witnesses is still a big issue.

It is most unfair for the president to  heap all blame on lawyers for  delay of court proceedings without apportioning the share of the blame to the  bench. At the end of the bar  there is the deterrent of  cost award system  which is not there for the bench which gives birth to impunity. Some judges hardly sit . They select the cases they want to hear , the days and time they want to sit . Now tell me  what happens where  a judge  delays proceedings or refuses to work for his pay ? Where is the deterrent? None .How  are the litigants and lawyers  recompensed? None .

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The President talked about

Nigeria being  part of the global market place for investment and legal services and the need for the quality of our justice delivery system to be  seen as efficient and effective so as not  to lose out to more efficient systems without addressing the issue of insecurity . Or is it not in Nigeria that judges are being kidnapped for ransom? Is it not in Nigeria that  a substantive chief judge of a state was prevented from sitting by security operatives and nothing  happened?  Is  the President not referring  to a Nigeria that is ninety percent failed  , where judges are being bullied by the executive and  can not  sleep with their two eyes.  closed ?

Looking at the  CJN”s address, of a truth ,he was right  that   the  speedy and thorough determination of the questions placed before  the court help ensure the stability of Nigeria , its democratic values and practices, and ultimately its future. Of a truth ,  the CJN was right when he asserted that  judges must rise to the challenge and restore public confidence in their  ability to dispense justice without fear or favour in line with their knowledge and understanding of the law, and the highest dictates of their  conscience. Of a truth  as pointed out  by CJN ,   corruption in the Judiciary due to the activities of some  bad eggs amongst  Judicial officers must be rid of.

Of a truth the CJN was dead right when he admonish judicial officers to  desist from giving incessant ex-parte orders that have portrayed the judicial system in bad light  and the need for judges to rise to the challenge to  restore public confidence in judicial system .

Of a truth the CJN was correct when he urge judicial officers  to realize that stringent application of procedural rules and technicalities that do not lead to the attainment of substantial justice and must therefore  do substantive justice through the rigorous application of the law as it is and not as they  perceive it to be. Of a truth the CJN was right in his confession that Nigerian  citizens are not entirely satisfied with the  performance of the judiciary . Of a truth the CJN was right in his assertion that  it may be difficult for the Judiciary to be impartial and objective in a democracy where it remains financially tied to the executive and that  it is trite that the foundation of impartiality is independence.

Truth aside , with all humulity , I  say  it is mendacious for the CJN to assert that the Judiciary  performed credibly well and exhibited considerable patriotism to the Nigerian State and served their  motherland to the best of their  ability during the corona virus pandemic. I am saying this with all due respect  because practically all the courts were  shut down during this period except for a very few that took up political cases  and those  that they have interest in. Majority of the High Courts and other courts of coordinate jurisdiction and inferior courts of record  were shut down . Unlike the  superior  courts of record that faintly and half heartedly applied  virtual hearings  or e sitting,   the  lower courts  in the entire Nigeria where  not afforded e system  facilities . Or are these courts  not part of the Nigerian judiciary? With utmost respect  , I ask the Judiciary to publish the returns of judges and magistrates during the Corona virus pandemic .  To this end,  I  respectfully say  that   the judiciary failed the  public  who are it’s  primary constituents and assessors when it matter most given the enormous resources, time and energy  that have been put in to make Nigerian judiciary  technologically  compliant.

It is mendacious

for the CJN to compare  the Nigerian   judiciary that has neglected to embrace technology with  the Judiciaries in the Commonwealth in particular and those democracy in general that  are  well advance in e system of administering and dispensing justice . The burdened, encumbered, , inundated and over-stretched political cases and disputations of  the Nigerian Judiciary are  self inflicting and so the Honourable CJN cannot be heard to complain .

.  Respectfully, it is mendacious for the CJN to posit that Nigerian citizens  perception of the judiciary as an  inefficient, slow and at times tainted is erroneous.  Lets call a spade a spade , impunity  remains the  bane of the Nigerian judiciary .  Our judicial officers entrusted with  judicial powers and authority by virtue of Section 6(6) of the 1999 Constitution (As amended) abuse the powers because  they are cock sure that nobody can or would hold them accountable . I have severally flown from Lagos to Abuja and lodged in hotels  for public interest matters for which I have been given hearing notices only to get to court and be informed that the court is not sitting and that I should take date. The disappointment of traveling from far and near to court only to take dates is not peculiar to me but to many hapless and helpless Nigerian litigants and lawyers who recline to faith .    A good number of judges come to court late and starts sitting without any explanation or apologies .  Many Nigerians come to court praying for their matter to be heard  because the registrar may from the blues announce that  the court is not holding  because the judge is sitting outside jurisdiction  , attending  a conference or seminar  or for  no reason at all . A good number of judges without courtesy  sits and rise  anytime they like without any explanation to the distain of the public  . Sometimes midway into  the cause list they rise and disappear  to their  chambers  pretending to be busy  and  will not return to continue sitting   and thereby forcing litigants and lawyers  to  take dates .  Some judges pick and choose the cases they want to hear and ask others to  take dates . Some judges  do not read their files to find out the cases that are urgent . They leave the task to registrar and clerks who are not trained for the job and just don’t care . Imagine I  filed a public interest case on the Nigerian Army involvement in the unlawful killings of  peaceful END SARS protesters at the Lekki Toll gate in October 2020 with an affidavit of urgency  it did not come up until November 2021  a  year after for the first time despite the fact that I wrote the judge whom the case was assigned to  . This cannot happen in the  good old days.  Once a case is filed with an affidavit of urgency without any consideration the motion exparte is heard and taken  within three days depending on how the applicant follow his case,  his application could be heard same day  but this is not the case today because of judicial impunity . We always complain of executive and legislative impunity but fail to complain of judicial impunity which is  far more dangerous and  has more damning effect on our democracy .

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Going forward,  the right people must be appointed   to the bench.  Appointment  must be based on merit not business , family or political    ties or connections.

The NJC  and  FJSC must be reconstituted, reposition and strengthen for the effective discharge of their  statutory mandates.

The returns of judges must be  well  monitored ,  examined and assessed ,  by the appropriate authorities for reward , promotional and demotional purposes. This will keep lazy judges on their toes .

The judiciary must embrace technology with its heart not lips . Many judges still prefer writing in long hands instead of the e system because they want to cover up   their impunity and corrupt practices .  In this wise, bodies must be set up  for the  monitoring and  enforcement of  the use of the e system  by judges .

Members of the public and the Nigerian Bar have very important role to play in the building of a viable , effective and efficient  judiciary  . They  must  not fail to  complain to the appropriate authority  when a member of the bench misconduct himself .  It is not an act of disrespect or sacrilegious  to report   an erring judicial officer for unethical misconduct  . Without the lodgement of complaint against erring judicial officers there will be nothing for the NJC to act on .The judiciary must learn to fight for itself using its inherent powers when necessary .The judiciary must take it’s destiny into its hands by realising that  it’s funding is constitutional , desirable, crucial, vital, and imperative.The judiciary must stop seeing it’s self as a begger . The judiciary must realise  that the funding of judiciary globally is centered on the judiciaries ability to hold its own . In that light , I really do not subscribe to the CJN celebrating the President , JUSUN and the Governors Forum in ensuring that the judiciary gets what is  due to it .

A judiciary with impunity can never be effective and efficient no matter how  well  funded   and independence it may be because impunity is the bedrock of corruption . A judiciary infested with impunity cannot  allow for  the entrenchment of rule of law  and thus  can never be the hope of the common man  To successfully Promote Judicial Excellence in the Administration of Justice in Nigeria, the  Judiciary  must get off its  high horse and must always  be above board .

Barr. Malcolm Omirhobo, a Human Right Lawyer writes from Lagos

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