TECHNICALITIES OVER JUSTICE; THE NEED FOR REFORMATION IN NIGERIA JUDICIAL ACTIVISM

INTRODUCTION

It is a settled principle of law that Justice delayed is justice denied. As long as Nigeria is still grappling with the problem of delayed justice, in fact someone might be of the opinion that our justice system in Nigeria is nothing other than a fancy dressing mirror. The question whether legal practitioners, both on the Bench and Bar who had the privilege of controlling one of the three arms of government are awake to their sacred duty of ensuring that the societal aspiration for substantial or real justice as opposed to ‘technical justice’ was met. Having at the back of our mind whether some of the tactics employed by some lawyers in the courtroom were not rather specifically calculated to delay or defeat justice than promote the course of justice in the country.

From the perspective of non-lawyers, can lawyers, comfortably say that they have earned the reputation of reasonable compliance with promoting and fostering the course of justice? It is not correct to assert that many of lawyers nowadays have ‘commercialized and monetized’ the course of justice? I often wondered if some of the pursuit of lawyers, especially in courtrooms, were in consonance with the doctrine of and quest of justice. Among common tactics used by lawyers to deny the society of substantial justice, was delay tactics, including unmeritorious request for adjournments by lawyers, which ultimately lead to a situation where cases last for decades in court. No matter the outcome, it’s no more justice. The court been the last hope of common man.

The Nigeria judiciary today is at crossroads, we witness of recent happenings in the Nigerian judiciary and some of us wonder if gold rusts what should iron do? This is because when you enter a courthouse, the architecture itself that the judge sits on a higher pedestal vis-à-vis the rest of the court and the judges hands down judgements which are binding on lawyers, clients, and the society at large suggest something. But what we are seeing today are instances of judges announcing their daughters weeding or burial of their parents and some very highly celebrated lawyers trying to offer, shall we say, gratification so that the scale of justice can be titled in their favor. We are not advocating it but, we merely mention it that we have to examine the system that we have to and ask ourselves whether indeed it seems the end of justice in this country. It can be said that lawyers are interested in law alone.

Very often, we see ordinary cases of unlawful termination of employment or even those for the enforcement of fundamental rights lasting between three to five years or even more. A number of circumstances could give rise to this delay. Lawyers writing letters of adjournment of cases, inability of judges and magistrates to deliver judgments on time, failure of the police or prison authorities to produce accused persons in court for trial, the rule that once a magistrate or judge is transferred and a new one takes over a case, it has to start de novo-etc.

The bottom line is that today it has almost become an accepted fact in Nigeria that cases must last several years in court before they are concluded. Under such circumstances, citizens would naturally be reluctant to initiate actions for the enforcement of their basic rights. There is no doubt that such delays not only erode public confidence in the judicial process but also undermine the very existence of the courts. This is in spite of the fact that speedy trial id guaranteed under Section 36(1) of the 1999 Constitution of the federal republic of Nigeria, which provide thus_

“In the determination of his civil rights and obligations, including any questions or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independent and impartiality”.

In the same vain, Section 36(4) 0f the same constitution also provided that ‘whenever any person is charged with a criminal offense, he shall be entitled to a fair hearing within a reasonable time by a court or tribunal (emphasis mind).

Unfortunately, the constitution does not define the meaning of the expression ‘within a reasonable time’ as used in these subsections-

The Supreme Court however had cause to define this phrase in the case of GOZIE OKEKE V THE STATE 2003 JELR 44875 (SC) 19 in His judgement, Justice Ogundare held thus;

The word ‘Reasonable’ in its ordinary meaning means moderate, tolerable or not excessive. What is a reasonable in relation to the question whether an accused has a fair trial within a reasonable time depends on the circumstances of each particular case, including the place or country where the trial took place, the resources and and infrastructures available to the appropriate organs in the Country. It is, therefore, misleading to use the standards or the situations of things in one of a particular country to determine the questions whether trials of criminal cases in another country involves an unreasonable delay- A demand for a speedy trial, which has no regards to the conditions and circumstances in this country, will be unrealistic and be worse than unreasonable delay in trial itself.

His lordship went further to state that in ascertaining whether the trial of tan accused person was held within a reasonable time, the following four (3) factors must be considered, namely;

The length of the delay.

The reasons given by the prosecution for the delay.

The responsibility of the accused for asserting his rights and prejudice to which the accused may be exposed.

Justice is a philosophical question, human justice is all we can never hope to achieve in courts, but human justice should be justice dictated by the law, justice ruled by the law, under the rule of law.

There are plethora of cases whereby technicalities adopted by lawyers are discouraged, for example, the case of JOSIAH V STATE (1985) 1 NWLR 125 and the case of ADELEKE V AWONIYI (1962) 1 NLR 260 where the Supreme Court held thus;

‘……it is now beyond the place of arguments to say that as officers of the courts, we do not owe duty to our society or community. The welfare of the community is preserved when the public is satisfied with the standards of the administration of justice. It is our firm conviction that either a criminal or civil trial, the stake which the community has in seeing that justice is done is so great that when and if it turns out that justice is not done, society will frown at it and condemn what has been handed down as justice by the court. Justice has to be done regardless of who and whom is a party’.

Wait a minute! Is that what is applicable here in Nigeria? I’m afraid we all know the answer is negative. A quick dispensation of justice will serve a long way in our administration of justice, for example, imagine a case lasting for over 20yrs in court of law, whereby the litigants are already dead, could that be also called justice? I may be right to say, no matter the outcome, it’s no more justice.

No doubt, the recent verdicts by the apex court in Nigeria have thrown more confusion rather than douse the tension of many Nigerians. Perhaps, these judgments have exhumed more complex questions in lieu of solving the convoluted issues, as regards the right and the propriety of an electoral process, the basis of which form the reasons why aggrieved parties in the electioneering processes approach the court. The reason why many have been so concerned about the Supreme Court’s judgements is that the court’s decision is seen as one subjugating their will to that of an umpire, which to the faintest, it never participate in the state’s election process, thus, making the whole exercise calling for the democratic principle of electing their leader a mere formality or charade.

Let’s take a little voyage to some decisions of the apex court on election matters for example, prior to the 13th February’s Supreme court’s decision on Bayelsa State’s gubernatorial election tussle, the decisions of the Nigeria apex court on election matters have always been subject of torrent of criticisms leaving the populace in a state of utter quagmire.

For example, In May 29, the Supreme Court’s decision on Zamfara’s APC primaries tussle cannot be forgotten in a jiffy, where in its judgement, the apex court ruled that noncompliance with INEC guidelines and directives on the date for the submission of candidates, vitiated the eligibility of the political party, APC, to participate in the election. Therefore, it would be deemed, Legally, that the party did not field any candidate or partake in all the elections that took place in the state, hence, the mindboggling judgement which robbed the party and the people of the state the real franchise to exercise the key tenet of democracy, which calls for the majority’s will. Of course the APC stalwarts perceived this as decision taken too far and sheer over-flexing of muscle by the judiciary in order to suppress the will of the majority in Zamfara state.

What appears highly intriguing is the supreme court’s judgement on January 14th, where its revered wisdom saw the need to accept in evidence the vote from 388 polling units, which had earlier been wrongly rejected by INEC in the march 28th gubernatorial election in Imo State. In its judgement, the supreme court in its wisdom, consequently allotted almost all the rejected votes in the 388 polling units to the APC candidate, Senator Hope Uzodinma. That decision, which many Nigerians are still tongue lashing and still trying to grapple with the ratio behind the ‘confusing’ judicial activism, clearly truncated the dream of the PDP candidate, Hon Emeka Ihedioha’s reign in Imo State. I believe we all knew about the blockbuster, a dealt and a deadly blow to APC in Bayelsa State.

CONCLUSION

Based on the scenarios, the knotty question that has been racking the brains of Nigerians, is that, what is the stance of the Supreme Court when it comes to making a Choice between the application of legal technicalities, which is a concept that overrides the literal interpretation of the letters of the law on one hand and the sheepish adherence to the letters of the law on the other hand?

The former demands a judicial exercise and what perhaps, may be technically called judicial activism. Of course, our Courts have heard the reasons to take to this in some cases years back. For example, during the screening process of Hon. Justice Ibrahim Tanko as the 14th substantive Chief Justice of Nigeria, his lordship admitted that there are indeed technicalities in law by virtue of its inheritance from English law. While the latter on the other hand does not admit the discretion of the interpreter, rather he is expected to comply strictly with the letters of the law without room for ‘special’ cases or exigencies.

I so submit with the wordings of the CJN that technicalities in law is something that has to do with perception of the way you think you will be able to achieve the goals of what you want to achieve. On the other hand, where the judges follow, without any judicial activism y way of philosophizing that is doing what will best serve the interest of justice. Justice does not only apply to the parties involved in the case, but the society, whose interest, at large, is at stake.

ABOUT THE AUTHOR

M.O ZUBAIR IS A LAW STUDENT OF FACULTY OF LAW, AHMADU BELLO UNIVERSITY ZARIA, A LEGAL RESEARCHER AND AUTHOR. HE CAN BE REACHED VIA 08169287393

email: [email protected].

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