By Johnson O. Esezoobo, Esq
I am circulating the Ruling of Osiagor J, in the above case not to show off or to celebrate victory but to highlight a point for the appellate Courts in Nigeria, which I submit need total overhaul. For now, these two Courts ironically, have become the cross–road to quick dispensation of justice in Nigeria. They turn out beautiful principles of law on quick dispensation of justice, yet they don’t practice it. They lament delay in administration of justice, yet would not come out with a standard judicial policy for proper guidance to make the sector functional.
The level of delay of justice at our Court of Appeal and the Supreme Court has become so scandalous as challenges the very essence of existence of appellate courts. It is probably sufficient to say that by the level of delay, the two Courts are doing more harm than good to good administration of the Country. What is this level of delay?
Permit me to refer to just two cases of Benedict Iheakam v Nigerian Railway Corporation and Sunny Odunwo v The News Agency of Nigeria. In the former case, the man went to court in 1995 to challenge his removal from office. He got judgment 8 years later in 2003. The Counsel for the Corporation who said he advised compliance with the judgment, but was asked to “just file papers..” went to the Court of Appeal where we wasted time until 2014. By the time the judgment was eventually enforced in 2018, the man who went to Court at the age of 38 was just a few months to the retiring age of 60 years. In other words, the reinstatement ordered by the trial Court in 2003 was rendered useless. But more importantly, as a result of policy changes, there is a problem now relating to issue of his pension and gratuity. He is contemplating returning to court for a determination of issues of how to earn his pension and gratuity as he has not been paid any since he retired in 2018.
In the latter case, Sunny Odunwo v The News Agency of Nigeria, the man who retired in 1991 at the age of 43 had to go to court to pursue issue of payment of his pension and gratuity in 2005 after having failed to secure payment administratively. He got judgment in 2008. The other party decided to enforce the judgment in its own way by falsely computing what was due and short paying him. And the man protested. But the other party turned round to seek to appeal the judgment it had enforced with a view to recovering what the poor man protested. The case was at the Court of Appeal for almost 10 years from 2009 to 2018 when they lost their last motion for extension of time to appeal.
Accordingly, the judgment creditor went for enforcement. The judgment debtor then rolled out a letter it procured from PTAD saying that contrary to the judgment of Court which found the man served for 20years and as such was eligible for pension and gratuity, he only served for 5 years and a few months and not entitled to pension and gratuity. It was on the basis of this that the judgment debtor decided to go to the Court of Appeal where it held down the judgment for almost 10 years.
Yet upon enforcement of the judgment by a garnishee order, the judgment debtor went on appeal and got judgment in May 2021. At this point, the man who retired in 1991 after 20 years of service but has pursued his pension and gratuity for over 30years at the age of 73, is now on his way to the Supreme Court. And he is afraid whether he would still be alive by the time the case is called up to be heard there having regard to the level of delay in that Court.
There are some known cases of persons who have committed suicide because of frustrations from delay in hearing of cases in our appellate Courts. Of the 44 lecturers of the University of Ilorin that went before the apex Court a few years ago, many died from frustrations before judgment which was protracted. This is what makes Osiagor’s Ruling of 22/7/2021 in Esezoobo v FIRS & Anor very significant. Hypocrisy and buck passing.
It doubtful if it does not border on hypocrisy and buck passing for the appellate courts to keep lamenting that Counsel inundate them with frivolous appeals without doing something about it. For example, in the case of Abubakar v FRN 0 NWLR (Pt. 1729) 268 at 289 – 290, the Supreme Court said inter alia:- “This is one of those appeals, disingenuously, agitated by counsel with full knowledge of its futility. With respect, the submission of the learned appellant’s counsel that the trial court did not follow the correct procedure in arraigning the appellant is a submission which, embarrassingly, betrays his misconception of the attitude of this court to this question of arraignment. As this court pointed out in Okoro v The State (1998) 14 NWLR (Pt. 584) 181….. I, therefore, with humility implore all counsel who have the advantage of practising at this rare altitude of the court’s hierarchy to, carefully, read these cases before irritating this court their appeals that are dead on arrival…”
In his concurring judgment Eko J.S.C said “The counsel is apparently behaving like the French Bourbons – who learnt nothing, who forgot everything. It is a clear abuse of court’s process for counsel to waste the precious time of the court and, of course, the respondent to present to the court an issue over which the attitude of the court is well known. Apart from it being futile, it is a reprehensible conduct…No lawyer as an officer of the court, is permitted to do anything that adversely affects the administration of justice rule 30 of the Rules of Professional Conduct for Legal Practitioners (RPC) 2007. By rule 32(3)(j) of the same RPC a counsel, before any court, is enjoined to eschew the promotion of a case which to his knowledge is false. I say no more”.
The above explains the frustrations of the apex Court, albeit self inflicted, and depicts abysmal lack of firmness or sternness required in dealing with serious issues of discipline in legal practice. Court is serious business and discipline in society is a function of the standard of discipline of the law emanating from the Courts. How can the apex Court be imploring counsel, and with all humility, as though counsel are in control of the Court? This seems to suggest that the apex Court is incapable of dealing with the situation just as was depicted in the case of Attorney General of Lagos State v Attorney General of the Federation 18NWLR (Pt.904)1 when Obasanjo ignored the judgment of the apex Court and nothing was done.
Can law be stranded?
It be restated here that with the right attitude, law can never be stranded as it was made to look in that case. Neither can it descend from its efficacy unless it is treated the way we do in this Country. A Court should at all times demonstrate that it is in control by insisting on as well as inspiring discipline in counsel. Filing frivolous appeals or processes as the apex Court has ceaselessly lamented in recent times is an act of professional misconduct which no court, much more apex Court should not be seen imploring lawyers with humility, to desist from but should address by referral to the Disciplinary Committee.
The casual attitude of the appellate Courts to issues of discipline of counsel in Court is also illustrated by the experience in LASTMA v Esezoobo (Unreported) Appeal No: CA/L/817/2007 where counsel to the appellant applied leisurely to withdraw their motion for stay of execution on the ground that the appeal had been entered at the Supreme Court.
The Court exclaimed in amazement that I opposed the application and said “The man brought you here and he says he does not want again…” to which I responded, “That raises a question whether he can bring me here whimsically and whimsically say…. The Court would not need to ask my reaction to the application if I had not say in it. My right to be heard on the point which prompted the question, “Mr. Esezoobo, what is your reaction?” is not restricted to, ‘I am not opposing but l ask for cost…”.
The Court then directed parties to go and file written addresses on the point. But since then, about four years now, the file has never been seen around again. Similarly, the appeal in the Supreme Court which was adjourned on Monday the 4th of November 2019 has never been heard of again.
On backlog of cases.
Unfortunately, I should like to remark that the aberration that trends in our system by which welfare and security that should be of the people is actually of the elite, has crept into the judicial process. Thus, while politicians have taken care of themselves such that by various amendments of the law, cases involving them are treated with dispatch, they call ‘time bound’, the common man’s case suffers prolonged delay with untold consequences.
In the case of Direct on PC Ltd v SofTechnology Ltd (Unreported) Appeal No: CA/L/762/2010, by the time the case was called up before a ‘special panel’ sometime in December 2021, I had lost trend of the processes I filed in the matter. I could hardly know where to take my bearing from in the argument I was presenting. This is the sorry state of affairs in our appellate courts. It does not make for discipline. A process that allows unscrupulous lawyers and litigants to file processes to frustrate administration of justice can not be addressed through empty judicial lamentations. We must do something to correct the situation lest we are counted for nothing other than what Lenin of Russia called ‘useful idiots’ in the 29th century.
Johnson Odion Esezoobo