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Saving the judiciary

By Ebun-Olu Adegboruwa, SAN

“Why Judiciary is to Blame for Delay in High-Profile Cases, by Malami”, “Malami Blames the Judiciary for Delay of Cases”; “Hold the Judiciary Responsible for Delay of Cases”, etc. The news headlines did not come to many as a surprise but it rather triggered another controversy between the judiciary and the executive as to who is responsible for some of the rot that currently plagues the judicial sector of our very fragile economy. In an interview with Channels television on its programme titled Politics Today, the Honourable Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, was reported to have made the following statements.

“The Attorney-General of the Federation, Abubakar Malami, has blamed the Nigerian judiciary for the nagging problem of delay in the determination of high profile corruption cases in court. Mr Malami said this in an interview on Channels Television’s primetime programme, ‘Politics Today,’ Monday.

Citing the case of a former Secretary to the Government of the Federation, Babachir Lawal, whose trial at the High Court of the Federal Capital Territory over alleged abuse of office, Mr Malami said, “You cannot by any stretch of imagination, place a blame associated with the conclusion and determination of the case on the doorsteps of the executive (arm of government). It is exclusively a judicial affair.”

He said the government was applying the innovative provisions of the Administration of Criminal Justice Act (2015), a legislative intervention aimed at curing the teething problems of delayed criminal justice administration in Nigeria. One of such provisions in the law is the day-to-day hearing of criminal cases. But corruption cases involving Politically Exposed Persons (PEPs) have lingered for several years despite this provision, which Mr Malami blamed on the judiciary.”

Expectedly, the above was greeted with a very loud response from the Chief Justice of the Federation, who functions statutorily, as the head of the judiciary in Nigeria, being the head of the Supreme Court, the Chairman of the National Judicial Council, Federal Judicial Service Commission, National Judicial Institute, amongst others.

“The Chief Justice of Nigeria (CJN), Tanko Muhammad, on Tuesday, absolved the judiciary of delay in the handling of high-profile corruption cases. The position of the Minister of Justice and the Attorney-General of the Federation, Abubakar Malami (SAN) that the judiciary be held responsible for delays in the trial and delivery of judgements on corruption cases involving politically exposed individuals appears to be one-sided,” the statement by the CJN’s spokesperson, Ahuraka Isah, read.
The CJN explained that the lapses on the part of the executive arm of government contributed to the delays in cases. According to him, the constitutional responsibility of the judiciary does not involve crime detection and investigation, while referencing the serial disregard of court orders by the executive. This is even as he stated that the judiciary does not have “a garrison command to fight its cause or enforce its orders and decisions. The Judiciary has an internal mechanism for budget control and implementation.”

Upon reading the response of the Chief Justice of Nigeria, the Honourable Attorney-General of the Federation, backtracked on his reported statement, stressing the point that the Buhari-led administration accords maximum respect for the judiciary.

“The Attorney General of the Federation and Minister of Justice, Abubakar Malami, has denied holding the judiciary responsible for delays in the trial of high profile cases in the country.

According to him, the President Muhammadu Buhari-led administration accords respect to the democratic provisions of the doctrine of separation of powers among the three independent and separate arms of government.

In a statement issued by his Special Assistant on Media and Public Relations, Office of the Attorney General of the Federation and Minister of Justice, Dr. Umar Jibrilu Gwandu,

Malami said the federal government maintained the sanctity of the provisions of Sections 4, 5 and 6 of the 1999 Constitution that delineate the roles and responsibilities of the executives, legislature and judiciary.

Malami’s denial may not be unconnected to a press statement by the third arm of government which on Tuesday, had expressed dismay over the federal government’s recent allegations of non-transparency amongst others.

He said it was on this note that the federal government supported the review of Section 121(3) of the Constitution to accommodate the provisions for financial autonomy of the state legislature and judiciary.

Malami explained further that the government also came up with the Executive Order 10 to enforce the provision of autonomy of State Legislature and Judiciary, adding that the Buhari-led administration has a record of non-interference with or meddling into the affairs of the legislature and judiciary.”

The statement explained that it was within the context of this quality and feature of non-interference by the Buhari-led federal government and for the avoidance of sub-judice that the minister responded that high-profile cases were presented by the federal government for prosecution and the government came out with initiatives in its efforts to support speedy determination of justice.

He noted with dismay the way his response to a question in a recent interview was construed to evoke an unintended and non-existing inferences which some mischief makers projected him as blaming the judiciary.

“It was an innocent statement aimed at showing a re-enactment of a tripartite division of powers and responsibilities among the Executive, Legislature and Judiciary,” the statement read.”

Many see all the above as the usual brickbats from our leaders, carefully orchestrated in predictable fashion, to give comfort to victims of the failure in the administration of justice in Nigeria. So, it is not so much about Abubakar Malami, SAN or the Chief Justice of Nigeria but rather that the system itself has too many features that trigger undue delays, as if designed to fail. If the truth must be told, the executive is the greatest beneficiary of the delay in the judiciary, being the arm of government responsible for the greater percentage of cases lingering in the courts. It takes an average eight years to conclude trial in the High Court, about ten years to prosecute any appeal that may arise from such judgment before the Court of Appeal and an average fifteen to twenty years for any further appeal to the Supreme Court to be decided, in normal cases, excluding political cases and criminal appeals. Beyond the lamentations which have become more of a ritual, the task before us all is to proceed to proffer and implement solutions that will save the judiciary from the imminent collapse staring us in the face. A major clog in the wheel of progress of the judiciary is interlocutory appeals, especially on the issue of jurisdiction. Even though this cannot be blamed squarely on lawyers or the judges, there is an urgent need to review our laws, especially the Constitution and indeed the Rules guiding the practice and procedure of the Courts. Since the days of Madukolu v Nkedilim, it has become fairly well settled that once the issue of jurisdiction is raised in any court, it must be accorded priority and decided one way or the other. The challenge however is how to deal with such an issue without sidetracking the real cause of action in the case pending in court. In some cases, the issue of jurisdiction goes as far as the Supreme Court such that by the time it is resolved, the parties must have moved on with their lives and their wounds. There must be a solution, which is to always combine the hearing of the main case with all the interlocutory issues arising therefrom. The Supreme Court adopted this approach in the case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 79 at 100, where Uwais, C.J.N., (as he then was) held inter alia that:

“With the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might be”.

Even where facts are needed to resolve preliminary objection, for the purpose of convenience and economy or time, the preliminary objection can be taken with the substantive matter. See Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (Pt. 1297) 407 at 426 where this Court (Okoro, Bage and Pemu, JJ.C.A.) followed Amadi v. N.N.P.C. (supra) on the same issue to hold inter alia that –

“It is instructive that the Supreme Court has given support to the position taken by the learned trial Judge in that an objection to jurisdiction where facts are needed to resolve it can be heard together with the substantive matter and an appeal taken together if need be”

This can best be explained in the way Oguntade JCA (as he then was) did in the case of Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 at 274 where he held thus –

“… Saying that the issue of jurisdiction should be resolved first however does not mean that it should be resolved separately. It can be taken along with arguments on the merits of the case. The important thing is that the Court should first express its view on jurisdiction before considering the merits.

The advantage of such proceeding is that in the event of an appeal by any of the parties, it is easy for the appellate Court to express its views on the decision of the lower Court as to jurisdiction and merit of the case. This removes the necessity for two appeals – one as to jurisdiction and the other as to the merit of the case”.

We must all be persuaded by the reasoning in the above decisions, if we want the judiciary to make progress, in addition to the urgent resolution of the hydra-headed issues of funding for the judiciary, autonomy in its administration, poor remuneration for and transparency in the appointment of judicial officers. In combining all interlocutory and substantive issues, we would have solved one of the major causes of the delay in the administration of justice in Nigeria. This approach cannot be said to be a waste of precious judicial time, given that it is the same people who throng the courts that also pay the judiciary. If it is the government on behalf of the people of Nigeria that pays for judicial time, the length of time taken to resolve their main grievances in court cannot amount to a waste. More arguments may fly here and there on this point, but what is clear as crystal is for us not to retain our old habit and yet expect any change. Over to you, men and women of the noble profession.

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