‘Nigeria’s crim­i­nal jus­tice sys­tem a dis­grace’

Prof. Fidelis Odi­tah is a Se­nior Ad­vo­cate of Nigeria (SAN). In this in­ter­view, he shares his thoughts on sev­eral is­sues in the na­tion’s jus­tice sys­tem. Ex­cerpts:

Daily Trust - - INTERVIEW - From Mo­hammed Shosanya, La­gos

What is your take on Nigeria’s civil jus­tice sys­tem? My opin­ion about Nigeria’s civil jus­tice sys­tem is that it doesn’t ac­tu­ally work. Of­ten, people say that there is a prob­lem of ac­cess to jus­tice, but my own limited ex­pe­ri­ence of the Nige­rian civil jus­tice sys­tem tells me that the real prob­lem is not ac­cess to jus­tice but exit from jus­tice. Cases stay far too long to be dis­posed of. The civil jus­tice sys­tem is set up in such a way that cer­tain pro­ce­dures are in­ter­minable. There is a per­sis­tent mis­use of in­ter­locu­tory ap­pli­ca­tions such that you can be em­broiled in in­ter­locu­tory skir­mishes for a con­sid­er­able num­ber of years. But the most an­noy­ing as­pect of the civil jus­tice sys­tem is the wide­spread mis­use of the so-called pre­lim­i­nary ob­jec­tions or the so-called ju­ris­dic­tional chal­lenges.

Of course in Nigeria’s civil jus­tice sys­tem, ev­ery chal­lenge, ev­ery con­ceiv­able de­fence is lev­elled ju­ris­dic­tion, such that they will in­sist the is­sue is trashed first be­fore the mer­its are con­sid­ered; ex­cept pro­ceed­ing brought by orig­i­nat­ing sum­mons whereby the court takes the ju­ris­dic­tion ob­jec­tion with the merit. In all other forms of pro­ceed­ings, whether based on pe­ti­tions or based on writ of sum­mons, the ju­ris­dic­tion is taken first, the rul­ing is de­liv­ered and that be­comes a whole new lit­i­ga­tion. Who­ever loses goes to the Ap­peal Court and from there to the Supreme Court. And mean­while, the case it­self gets bogged down, be­cause the case would not be tried un­til the ques­tion on whether there is ju­ris­dic­tion is re­solved. And of­ten­times, it might take as much as 10 years be­cause it goes from the Ap­peal Court to the Supreme Court on this same ju­ris­dic­tional chal­lenge. For many lit­i­gants that is just too long, and of­ten­times, they aban­don the pro­ceed­ings. It is only very few people who are dogged enough to want to con­tinue with the strug­gle af­ter 10 years of de­lays and le­gal ex­penses. That is one big as­pect that needs to be looked at.

How do we tackle this prob­lem?

It would re­quire the courts hav­ing to write new rules which say that just as it hap­pens in the case be­gan by orig­i­nat­ing sum­mons; these ju­ris­dic­tional ob­jec­tions should be taken along­side the merit. Af­ter all, in most of the civil pro­ce­dure rules op­er­at­ing in Nigeria, the plain­tiff is re­quired to front-load their documents, is­sue his writ of sum­mons, file state­ment of claim, file wit­ness state­ment and sub­mit the doc­u­men­tary ev­i­dence which is re­quired. So the de­fen­dant who has a ju­ris­dic­tional ob­jec­tion could file his de­fence, take his ob­jec­tion and the mat­ter could be tried im­me­di­ately.

But the Chief Jus­tice of Nigeria gave a prac­tice di­rec­tion to judges to en­sure that they have at least three judg­ments in a year. Don’t you think this is also a way of fast­track­ing the process?

I be­lieve that spec­i­fy­ing a min­i­mum num­ber of judg­ments to be writ­ten by a judge is like tick­ing the box; it doesn’t ad­dress the sub­stance of the prob­lem. It is a cos­metic so­lu­tion. If I sit in Osogbo for ex­am­ple and I have be­tween 50 and 100 cases al­lo­cated to me in a year and I can write rul­ings and judg­ments up to half of those cases, you will say that I am do­ing very well be­cause I have done at least 50 per cent of the cases. But if I sit in a ju­ris­dic­tion where I have about 200 cases al­lo­cated to me, and I write the same 50, you will say that I have only done 25 per cent of my job. So in per­cent­age test, it looks like I have not done any­thing. The per­son who did 25 has done 20 per cent of his 50. I that have done 50 have done only 25 of my own 200.

Don’t you think that lawyers are ma­jor cul­prits in this prob­lem?

Of course, they are the ma­jor cul­prits. Many judges are very lazy. Many of them don’t be­lieve that they can give ex­tem­po­rary. If some­one ap­plies to me to amend plead­ings for ex­am­ple, I could de­cide whether to al­low it or not im­me­di­ately and give you rea­sons for do­ing so. I don’t have to ad­journ for one month to give you rea­son why the doc­u­ment would be ad­mit­ted or not. Many judges are in­ca­pable of judg­ing, they have no busi­ness in the bench.

What of the crim­i­nal jus­tice sys­tem?

The crim­i­nal jus­tice sys­tem is a com­plete dis­grace. The pris­ons are over con­gested. The crim­i­nal jus­tice sys­tem sim­ply doesn’t work across board. Why does it not work? Of­ten­times, the pros­e­cut­ing au­thor­i­ties charge so many cases and the judges will tell you that their dock­ets are full and are in­ca­pable of find­ing time to han­dle these cases. In the case of mi­nor cases, many people are kept on re­mand and they stay on re­mand longer than they would have served if they were con­victed im­me­di­ately. So the crim­i­nal jus­tice sys­tem is a dis­grace and en­tirely laugh­able. It has also been hi­jacked.

Who do you think hi­jacked it?

It was hi­jacked by spe­cial in­ter­ests - politi­cians and rich people! They hi­jacked it and made it a sub­ject of cap­ture. And it is at ev­ery level of de­ci­sion mak­ing. You have to re­ally worry whether the judges un­der­stand the law or whether they have been cap­tured by the par­ties in­volved in giv­ing some of the er­ro­neous judg­ments at ev­ery level of de­ci­sion mak­ing.

But judges cite au­thor­i­ties be­fore tak­ing their de­ci­sions?

You have to ask yourself whether the au­thor­i­ties they cite sup­port what they cite them for. The judges of­ten mis­in­ter­pret the facts; whether de­lib­er­ately or in­ad­ver­tently. And so you don’t ac­tu­ally know where in­com­pe­tence ends and cor­rup­tion be­gins. The is­sues are more com­plex and I be­lieve that the process for the se­lec­tion of judges needs to be looked at.

What’s your view on the on­go­ing na­tional con­fer­ence?

I have al­ways been cyn­i­cal about the na­tional con­fer­ence. I have al­ways thought that it was un­nec­es­sary, that we have more press­ing prob­lems. My views in that re­spect have not changed. I do not be­lieve that the na­tional con­fer­ence will achieve much. I do not be­lieve that the tim­ing is more aus­pi­cious and I do not be­lieve that its agenda is one ca­pa­ble of suc­ceed­ing. But hav­ing said that, I agree that it is good to talk; people have been clam­our­ing for the con­fer­ence. I do not be­lieve that the con­fer­ence is the panacea for all our prob­lems. It is not go­ing to solve the prob­lem of cor­rup­tion for ex­am­ple.

What is your view about the elec­toral sys­tem?

If the elec­toral process is hi­jacked and ma­nip­u­lated such that it no longer de­liv­ers on the wishes of the people, the re­sult can­not be said to be rep­re­sen­ta­tive of any­body. In terms of form and sub­stance, there is no dif­fer­ence be­tween a coup d’état and an elec­toral fraud. In ei­ther case, is the will of the people re­flected? In one case, gov­er­nance is ob­tained by force; the will of the people is vi­ti­ated by force. In other case, gov­er­nance is ob­tained by fraud; the will of the people is vi­ti­ated by fraud. In both cases, there is a vitiating fac­tor, whether it is force or fraud, the re­sult is al­ways the same. That is the chal­lenge that we have and why we all have to be con­cerned about the elec­toral process. Un­for­tu­nately, in Nigeria the mid­dle class don’t show enough in­ter­est in elec­tions and pol­i­tics. They should! These people who claim to ex­er­cise power on our be­half also ex­pend our com­mon wealth. So, in or­der to re­form our elec­toral process, we must en­sure that our elec­toral sys­tem is cred­i­ble.

How would you de­scribe re­cent call by INEC for es­tab­lish­ment of elec­toral of­fender’s tri­bunal?

That is not the is­sue. In­stead of Nigeria try­ing to solve its prob­lems, it is try­ing to cre­ate so many spe­cialised tri­bunals. The prob­lem is not whether it is a spe­cial tri­bunal or not but the slow­ness with which the course of jus­tice grinds. In other coun­tries such as Eng­land, they don’t have spe­cial elec­toral of­fences courts. If some­one com­mits elec­toral of­fence, you take them to reg­u­lar courts be­cause those courts work. You will get ver­dict in the time you ex­pect. In Nigeria, the courts don’t work.

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