This third and concluding piece of a three-part investigative report reveals that it is not enough to blame underfunding of the Nigerian judiciary for the congestion of appeal cases which deprive many Nigerians access to justice at the Supreme Court, ADE ADESOMOJU reports
On September 4, 2017, Mr. Okoi Obono-Obla, a Nigerian lawyer, who had practised for about 25 years, took to his Facebook wall to rant about the ills of the nation’s judicial system.
Obono-Obla, who was appointed as the Special Assistant to President Muhammadu Buhari on Prosecutions in April 2016, stated in the Facebook post that he filed “several appeals” in the Supreme Court since 2007, adding that “till now, no date has been given for the hearing of these appeals”.
The presidential aide deplored the Supreme Court’s anachronistic registry which he said had failed to embrace technology to improve on its efficiency.
Five days after lambasting the Supreme Court, Obono-Obla, who is also the Chairman of the Special Presidential Investigation Panel for the Recovery of Public Property, returned to his Facebook wall to announce that he received a letter from the Supreme Court on September 8, 2017.
According to him, the Supreme Court’s letter requested him to send a list of his cases pending before the Court of Appeal and the Supreme Court.
He listed the pending cases and told the story of his former client whom he said despite being “a privileged Nigerian” could not get his case pending before the apex court heard before he died.
According to Obono-Obla, the client was “wrongly and unconstitutionally” removed as the Deputy Governor of Bauchi State by the state’s House of Assembly but “died without his appeal heard in the Supreme Court”.
Expressing his frustration to this reporter about his experience in the Supreme Court, he said, “I filed almost six appeals between 2003 and 2009.
“I was not able to get a hearing date in the Supreme Court before I was appointed in 2015 even though all the parties had filed all the briefs and the matters were ripe for hearing.”
Describing his experience in pursuing cases in the Supreme Court as “frustrating and nasty”, he said “sometimes parties are long dead before they are given dates in the Supreme Court”.
Blame on underfunding
Stories of frustrations like Obono-Obla’s abound among lawyers who have cases before the Supreme Court, where many appeals become “academic” and by implication are dead before being heard.
Like Obono-Obla’s former client, some appellants even die before their cases die.
The then Chief Justice of Nigeria, Justice Aloma Mukhtar (retd.) captured this in her speech during the Supreme Court’s new legal year ceremony held on September 23, 2013, when she said, exhausting “complete remedy in a case” – from the trial court to the Supreme Court – “could take up to 20 years with the original litigants dead and substituted and in some cases the substitutes also dead and substituted.”
According to her, the situation is usually aggravated by the process of interlocutory appeals which travel all the way to the Supreme Court while the substantive suit remains pending before the trial court.
She added that in some instances, by the time the Supreme Court decided that the case should continue at the trial court, “most witnesses might have died or are alive but senile, with documents no longer traceable”.
In a nutshell, many cases pending before the Supreme Court are dying and would be dead in a matter of time if drastic steps are not urgently taken to hear them.
Like many stakeholders in the judicial system, Mukhtar, in her speech, identified poor funding as a major cause of the problem.
“A situation where budgetary allocation to the judiciary continues to drop while the general government budget is on steady increase every year is clearly an impediment to the quick dispensation of justice in Nigeria and on the whole a setback to the current effort at transforming the judiciary,” she said.
According to her, the budgetary allocation of the judiciary steadily declined from N95bn, which it was in 2010, to N85bn in 2011, N75bn in 2012 and to N67bn in 2013.
Checks by this reporter showed that the funding of the third arm of government received marginal boost in 2014 when it rose to N68bn.
Again, the funding rose to N73bn in 2015
In the 2016 budget – the first prepared by the incumbent President Muhammadu Buhari’s administration which came on board on May 29, 2015 – the total allocation rose to N6.077trn from N4.493trn in the previous year.
But in that 2016 budget, the allocation for the judiciary sunk to N70bn from N73bn which it was in 2015.
It was, however, heartwarming for the judiciary in 2017 when it was allocated N100bn at a time when the size of the national budget had risen to N7.298trn.
The size of the proposed 2018 budget, which has yet to be passed by the National Assembly, is N8.612trn.
Even with the over N1trn increase in the size of the national budget, the judiciary, in the proposed 2018 budget, is allocated N100bn, the same amount it got in 2016.
Despite the raise in the judiciary’s allocation from N73bn in 2015 to N100bn in 2017, Mr. Femi Falana, a Senior Advocate of Nigeria, said “It is indisputable that underfunding is one of the major problems confronting the judiciary of this nation.”
The adoption of Information Communication Technology has been advocated as a major innovation that could help the judiciary to tackle the problem of delays.
The third arm of government has been thinking in this direction with the inauguration of the Judicial Information Technology Policy Committee since 2012.
In February this year, with the birth of the JITPO-COM, the Supreme Court was retrofitted and equipped with gadgets and equipment for conducting efficient proceedings.
The project, with proper funding of the judiciary, is to be replicated across all Nigerian courts.
The incumbent CJN, Justice Walter Onnoghen, said recently that the Nigerian Legal E-Mail System, introduced by the committee, is going to be lawyers’ mandatory means of filing court processes at the Supreme Court and receiving communication from the court as from July 16, 2018.
Perhaps with more funding, the judiciary’s transition from its analogue state to digital would have been quicker.
“A resultant effect of low budgeting for the courts is the inability to fully embrace ICT as it does not come cheaply,” Justice Mukhtar had said on September 23, 2013.
Reiterating the negative impact of what she described as the “resultant effect of a slim budget on the judiciary”, she noted that “a number of courts in Nigeria today evince decay and neglect of infrastructural amenities particularly at the state level.”
Falana agreed with this position, saying “some of the courtrooms are not fit for serious judicial work”.
He disclosed that he had “witnessed a situation where a judge had to buy his own generator to power the court”.
At the valedictory court session held in his honour on November 10, 2016, a former CJN, Justice Mahmud Mohammed, made a strong case for “the realisation of the judiciary’s fiscal autonomy” as guaranteed by the Nigerian constitution.
Also making a case for increased funding of the judiciary, Justice Muhammad Muntaka-Coomassie, while retiring as a Justice of the Supreme Court on February 10, 2016, said the “grossly” underfunding of the judiciary not only “negatively impacted on the infrastructure and personnel within the system, it reduces productivity, increases frustration and deflates morale”.
Lack of transparency weakens the case for more funding
The breakdowns of the yearly allocations to the presidency, various ministries, departments and agencies of the executive arm of government are open to public scrutiny as they are revealed on the budget documents sent annually to the National Assembly for passage.
This is not the case for the two other arms of government – the judiciary and the legislature.
The absence of these details over the years spurred this newspaper to write to the National Judicial Council requesting its “detailed budgets” and “the financial statements” for years 2013, 2014, 2015, 2016 and 2017.
The NJC, headed by the CJN, is constitutionally saddled with the responsibility of the appointment and disciplining judges at both state and federal levels.
But its appointment and disciplinary powers end at making recommendations to either the governor when a state judge is involved or the President when a federal judge is involved.
Its recommendations are subject to the approval of either the governor or the President as the case may be.
Apart from this, the NJC, under the chairmanship of the CJN, also collates the annual budgets of the entire judiciary at both the state and federal levels and submits a unified budget of the judiciary to the executive arm of government which in turn presents it as part of the national budget to the National Assembly for passage.
The two letters written by The PUNCH Newspaper requesting the details of the finances of the NJC for the last five years were anchored on the Freedom of Information Act, 2011, which mandates all public institutions to respond to such requests within seven days.
But despite the provisions of the law, the first letter received by the office of NJC’s Executive Secretary on March 7, 2018 was ignored.
The reminder letter by the newspaper was received by the Executive Secretary’s office on March 16, 2018.
While on a follow-up visit to the NJC, this reporter was initially told that the council had referred the newspaper’s request to the Department of Planning, Research and Statistics.
But on meeting a senior official of the PRS department, this reporter was inundated with technical reasons why the demands of the newspapers could not be met.
The NJC however refused to formally respond to The PUNCH’s letter even when this reporter suggested to the PRS department’s official to write to the newspaper explaining why the requests could not be met.
‘Problem is beyond underfunding’
Some stakeholders have said there was more to the delays suffered by appeals at the Supreme Court than the underfunding of the judiciary.
For instance, the President of the Committee for the Defence of Human Rights, Mr. Malachy Ugwummadu, who is also a practising lawyer, said “funding, could be part of it but certainly not the entirely reason.”
In agreement with Ugwummadu, the Executive Director, Socio-Economic Rights and Accountability Project, Mr. Adetokunbo Mumuni, said “a lot of things have to be looked into.”
Beyond underfunding of the judiciary, Mumuni, a lawyer, whose organisation is in the forefront of advocacy for the enforcement of citizens’ legal and economic rights, said “the process of appointments to the bench must be looked into”.
“The integrity and competence of judicial personnel is also very important,” he said.
Mumuni’s views tallied with Justice Mukhtar’s position which she expressed as the then CJN in 2013 that “bad judgments and rulings” churned out by judges were contributing to the problem.
She said, “Our observation has revealed that a plethora of bad judgments and rulings churned out in lower courts contribute to the catalogue of pending cases in courts having appellate jurisdiction over such lower courts.”
Call to embrace ADR
Falana said the adoption of Alternative Dispute Resolution mechanism as against litigation would reduce the congestion in the Supreme Court.
Thinking in that direction, the then CJN, Justice Mohammed, had since 2016 inaugurated the Supreme Court Rules of Court Advisory Committee which drafted and subsequently oversaw the publishing of the ADR rules in the gazette.
Since late last year, a banner had been placed at the entrance foyer of the apex court declaring the ADR centre open
Speaking of the general reluctance towards embracing ADR in Nigeria, Falana said although the mechanism had always been part of the nation’s judicial system, it had been ignored over the years because “Nigerians have become extremely litigious”.
Asked why the Supreme Court’s ADR centre had remained “open” but yet to begin operations, the Director of Press and Information of the Supreme Court, Dr. Festus Akande, said, “Everything takes time and a process.”
While giving the assurance that the centre would begin operation soon, he said, “It is not something that we can be in a hurry to commence.”
‘Interlocutory appeals should not get to Supreme Court’
There have been calls for an amendment to the Nigerian Constitution to limit the types of appeals that could get to the Supreme Court.
Ugwummadu decried the contributions of interlocutory appeals to the delays being suffered by cases at the Supreme Court.
A former Justice of the Supreme Court, Justice Clara Ogunbiyi, while retiring in February this year, said in her valedictory speech that apart from the need to “review seriously the category of political cases that should come to the Supreme Court”, there were also “numerous appeals that should never get to the apex court.”
She suggested that “interlocutory appeals should all terminate at the Court of Appeal’s domain.”
Also, Justice Muntaka-Coomassie (retd.) suggested that “there should be an amendment to the Constitution to stop interlocutory appeals from coming to the Supreme Court; they should be ended at the Court of Appeal.”
On his part, however, the Second Vice-President of the Nigerian Bar Association, Mr. Monday Ubani, advocated that “the first practical and realistic reforms in the Nigerian judicial system is to stop the system of allowing every appeal to go from the least court to the Supreme Court manned by less than 20 Justices in a country of over 180 million people.”
But the Director, Access to Justice, Mr. Joseph Otteh, called for “a great care” in implementing Ubani’s suggestion.
Otteh said his call for caution was “because of the intrinsic role that appeals play in correcting errors and challenging the narrowness of perceptions”.
Decentralising the Supreme Court
Obono-Obla and Ugwummadu made a case for the establishment of regional Supreme Courts to reduce the appeals that would get to the Supreme Court.
They recalled that in the 1960s, the defunct Western Region of Nigeria had its own appellate courts.
While advocating that “certain categories of appeals, particularly interlocutory appeals, should not be allowed to go beyond the Court of Appeal”, Ugwummadu said, “Substantive appeals on other category of litigation beyond matter affecting the Constitution should terminate at the purpose regional Supreme Courts.”
‘Get the 21 full complement of Justices’
Most of the stakeholders, including Justice Muntaka-Coomasie, Justice Ogunbiyi, Falana, Obono-Obla, Mumuni, Ubani and Otteh, who were quoted in this report, made a case for the appointment of more Justices to the Supreme Court to make the full complement of 21 Justices allowed by the Constitution.
The Nigeria’s apex court currently has 16 Justices.
Ubani said, “To aid the decongestion of the Supreme Court, more judges should be appointed to facilitate the process. It is not right to argue as some do that more judges are not needed to decongest the courts.”
He, however, added that having 21 Justice “is not likely to be a silver bullet”.
“I think it might be just a little bit more than a drop in the bucket,” he said.
‘Impose stiffer sanctions for frivolous appeals, review the criteria for SAN rank’
Both Falana and Ubani also advocated the review of the criteria for the conferment of the rank of Senior Advocate of Nigeria, an equivalent of United Kingdom’s Queen’s Counsel by placing less emphasis on the number of Supreme Court cases an applicant must have conducted.
Falana said, “The requirement for the rank of Senior Advocate of Nigeria is a major contribution to the congestion of the court.
“Cases that should ordinarily end at the high court or the Court of Appeal will find their ways to the Supreme Court because lawyers want to make the number.”
Sharing this view, Ubani said, “As long as the court trials at both lower and appellate courts especially at the Supreme Court form part of the basic criteria for the conferment of the rank of Senior Advocate of Nigeria, the appellate courts will remain perpetually congested and overburdened.”
Both Falana and Ubani also encouraged the apex court to continue to impose stiffer penalties on lawyers indulging in filing frivolous appeals.
‘All arms of government should be bothered’
In his interview with this reporter, Obono-Obla advocated the need for collaboration among the three arms of government to tackle the problem of delays of cases in the apex court.
“Everyone, including all the three arms of government, should be bothered that ordinary Nigerians have to wait for more than 10 years to access the Supreme Court,” he said.
Meanwhile, this reporter’s repeated telephone calls to the Chairman, Senate Committee on Judiciary, Human Rights and Legal Matters, Senator David Umaru, and his counterpart in the lower chamber, the House of Representatives, Mr. Aminu Shagari, were not answered.
The two legislators, whose committees scrutinised the proposed constitution amendments bordering on the judiciary, did not also respond to text messages requesting information about how the ongoing process of altering the law would help to decongest the Supreme Court and enhance justice administration in the country.
It was the same experience when this reporter attempted to request information about what the executive arm of government was doing about the problem from the AGF and Minister of Justice, Abubakar Malami (SAN).
The NBA President, Mr. Abubakar Mahmoud (SAN), has also yet to respond to requests for his response on what the association was doing to tackle the contributions of lawyers to the problem.
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