For a considerable period of time, PACAC has watched with alarm the increasingly deteriorating state of the Nigerian Judiciary, particularly with regard to the issues of the delivery of Justice, attitude to corrupt Judges and Senior Advocates, hostility to suggestions for improvement in the delivery of justice and the issue of appointment of Judges. In order to achieve a deeper and more accurate perspective on the above issues, on the 2nd of February, 2022, PACAC convened a one day Special Dialogue attended by selected and well informed Jurists, to review the current state of the judiciary.
1. APPOINTMENT OF JUDGES
Concern was expressed about a developing phenomenon in the appointment of Judges. It was noted that increasingly, children, in-laws and wives of Senior Judges/powerful Governors were being appointed into the judiciary at the expense of other Lawyers who are not so connected. Whilst PACAC has no objection to relations of existing judges being appointed into the Judiciary on merit, PACAC insists that all persons applying for appointment into the judiciary should be given a level playing field. A “family affair” Judiciary must be avoided at all costs. Pursuant to the above, it was recommended that
(i) All vacancies in the Judiciary both at Federal and State levels should be advertised.
(ii) The public should be invited to comment on the fitness of applicants for appointment into the Judiciary.
(iii) All authors of adverse reports on any such applicant should be invited to give evidence in their report to a special panel.
(iv) The NBA Branch of applicants should also be requested to express their opinions on the fitness of applicants from their branch for judicial office
(v) All applicants who clear these hurdles should be given a written examination to determine; (a) their knowledge of Law; (b) their personal principles concerning justice and their philosophy of life.
2. DELIVERY OF JUSTICE
The meeting noted the questionable basis and poor quality of some judgments in recent years. It noted particularly, a clear preference for technicality at the expense of the justice of the case. Examples of this orientation include the Rivers State Governorship Election case in 2015 in which the Supreme Court overturned the judgments of the Election Tribunal and the Court of Appeal, nullifying the election. In the process, the Supreme Court declared that a petitioner complaining of substantial non-compliance with the Electoral Act in the conduct of an election, must prove his case, polling unit by polling unit, polling point by polling point, ward by ward. This meant in the case of Rivers State case which had 4,442 polling units, the calling of at least, 4,442 witnesses – a clear impossibility. If this is translated to the federal level, this would mean at least 130,000 witnesses. Again clearly, a feat impossible to achieve. The Court aggravated this injury to free and fair elections by proclaiming a preference for the fraud and rigging prone Voters’ Register to the scientific and accurate Card Reader Data Base results.
Even more grievous are the Supreme Court decisions in Zamfara and Bayelsa States in 2019 by which it effectively transferred the electoral victory of one party to another which had been massively rejected at the polls by the electorates. In other words, the Supreme Court set aside the decisions of the electorate and assumed the powers to install the losers in both the Executive and Legislative Arms of Government in Zamfara State and in the Executive arm in Bayelsa State. Thus, the Supreme Court had handed over the governance of a State from a Party the electorate had overwhelmingly voted for, to a Party that they had firmly rejected at the polls. In other words, in these two cases, the Court constituted itself into the electorate of Zamfara and Bayelsa States, by imposing its will over the States electorate. This constituted a major breach of the Constitution and our democratic rights because neither the Constitution nor the practice of democracy, contemplates any situation, in which a court replaces the votes of the electorate with its own judicial votes.
In another case decided in 2021 involving the trial of a former governor for money laundering of about N7 billion, the Supreme Court overturned the decisions of both the High Court and Court of Appeal on the ground that the Judge who tried the case and read the judgment had been promoted to the Court of Appeal at the time he read the judgment. In doing this, the Court disregarded the judicial fiat given by the President of the Court of Appeal to the Judge to go to the High Court to deliver the judgment. Moreover Section 397(7) of the Administration of Criminal Justice Act expressly gives power to a newly promoted High Court Judge to conclude part heard matters in the High Court after his promotion. The result of this judgment of the Supreme Court is that the 12 years of labour of the Trial Court, the Court of Appeal, the Supreme Court itself and the EFCC over this case, were thrown overboard for a fresh start at the High Court, with an uncertain fate. It should be noted once again that the Supreme Court did not question the substance of the judgment and the correctness of the conviction of the defendant; only that the trial Judge came back from the Court of Appeal, specifically to conclude a case he had presided over for many years.
The result of the outcome of these cases is that Judgment was delivered without Justice.
3. JUDICIAL IMMUNITY TO MISCONDUCT
The meeting also considered the effect of the case of Ngajiwa vs. F.R.N., 23rd June 2017, which appeared to be creating a special immunity for Judges against their own misconduct. Ngajiwa, a Judge of the High Court of Kano State, who was charged for corruptly accepting a bribe, which he admitted, was nevertheless discharged at the Court of Appeal level on the ground that by Section 153(1) and the 3rd Schedule Part (1) of the Constitution, no Judicial Officer can be arrested and tried for any criminal offence committed by him in the course of his duties, until he has first been put through the disciplinary process of the NJC, found guilty and dismissed or retired compulsorily. As a result of this judgment not only has Ngajiwa returned to the Kano State High Court bench sitting in trial of other offenders, so have several other Judges with clear and established cases of corruption. In one case, a Judge who received well proven and established bribes is back on the bench and the Senior Advocate of Nigeria who bribed him and was convicted for that reason and also for bribing Registry Staff to send his cases to the Judges he had bribed, is also back in practice as a Senior Advocate of Nigeria, thanks, to the decisions of the Court of Appeal and the Supreme Court. Even a Supreme Court Judge from whom considerable assets were recovered, who was on trial for corruption at the time the Ngajiwa case was decided, returned to the Supreme Court and headed panels of the Court, hearing appeals from the Court of Appeal. It would cause a great embarrassment to the Judiciary if the presence of such discharged but NOT acquitted Ngajiwa case Judges in Court, is challenged by Counsels.
The above scenario which gives the impression of the determination by the judiciary to protect themselves from the consequences of misconduct of its members is ultimately, injurious and detrimental to the interest of the Judiciary and to the Nation itself.
4. RESISTANCE TO CHANGE
PACAC has been involved in subtle and private contacts with the Judiciary to table these troubling issues for discussion and resolution, but our efforts have been met with resistance and in some cases open displeasure. In addition to the above, PACAC notes that the Chief Justice of Nigeria as Head of NJC is responsible for the appointment of the bulk of the other members of the NJC. The same Chief Justice is also the Chairman of the Federal Judicial Service Commission which makes recommendation on appointments, promotions and discipline of Judges, to the NJC. PACAC is of the view that, it is time to unbundle these powers of the Chief Justice of Nigeria amongst several other Judicial Officers, including retired Judicial Officers in order to ensure better outcomes in the Administration of Justice.
(i) We are raising the above issues not out of hostility to the Judiciary, but out of love for Nigeria with the intention and hope that the Judiciary will rise again to the level it once attained, now fondly referred to as “the golden age of the Supreme Court” when the Nigerian Supreme Court was regarded as the source of an outstanding sense of justice and was a great pride to the Nation. The philosophy and guiding principle of the golden age Supreme Court was that in every case, the justice of the case, must prevail, NOT technicalities. This was clearly laid down in Engineering Enterprise Contractor of Nigeria v. Attorney-General of Kaduna State,  1 NSCC 601 at 613, where Eso, JSC, stated as follows:
“One stream that permeates all these decisions and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the court. I am not saying that ex debito Justiciae by itself is a cause of action. It is to be the basis for the operation of the court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.
(ii) For Nigeria to be an orderly, stable and just society, the Judiciary the Bar and very importantly, the Court Registries must be upright and free of misconduct, corruption and unethical practices.
(iii) The recent Supreme Court decision in GTB vs. Innoson is welcome for the Court’s admission that it is capable of making an error and is always ready to acknowledge such mistake when its attention is drawn to it, and finally, it is prepared to reverse its decision in order to enthrone justice.
(iv) The inability or unwillingness of the NBA to sanction lawyers for unprofessional and unethical conduct on their part is a major cause of the problems emanating from the Judiciary. For, it is the Lawyers who bring in improper applications, provide unethical defences for rich clients and who introduce our Judges to bribery and corruption. Such Lawyers need to be disciplined by the NBA.
(v) Whilst the CSOs, NGOs, NGIs, Labour Unions, activitists have been focused exclusively on the Executive and Legislative arms of Government, politicians, Civil Servants and Public Services, there is not much activism and scrutiny by these Organizations into the Judiciary, inspite of the centrality of the judiciary in the orderly development of democracy, the rule of law, the general welfare of Nigerians and the progress of the Country generally. There is need for balance in the scrutiny by these organizations into the various arms of government. Specifically, these Organizations need to peep more into the activities of the judiciary.