An Overview Of The Nigerian Judicial System; Achievements, Challenges And Prospects (A Case Study Of Lagos State Ministry Of Justice)

Project and Seminar Material for Political Science

An Overview Of The Nigerian Judicial System; Achievements, Challenges And Prospects (A Case Study Of Lagos State Ministry Of Justice)


Abstract


The topic “an overview of the Nigerian Judicial system; achievements, challenges and prospects (a case study of Lagos State Ministry of Justice)” seems to attract to itself the attention and inquisitiveness on the part of the common man or every believer in the Rule of law of what the writer is talking about or what he is going to upon since the mere mention of justice in our society today raises a conjecture and thereafter suffers from universally acceptable definition. An attempt is made in this essay to scrutinize what hampers the judicial powers vested in the courts under section 6(6) (b) of 1999 constitution which it is said shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. Also considered in the essay are the ‘defects’ in and/ or ‘injustices’ written into the substantive law. For instance the ouster of court’s jurisdiction, the down payment or deposit of a substantial amount of money paid into a court before a challenge to chieftaincy dispute is entertained, discrimination on the grounds of protection to the public officers of the state and the adoption of foreign culture and archaic statutes that were largely meant to nurture a colonial society among others are written into or found in the basic law of the state , then it is not possible to talk of justice under such a system. Sometimes a system fails because of procedural defects and inadequacies. When there exists structural injustice in the location of courts (for instance a poor litigant resides share, Lagos state and the Supreme courts is located in Abuja) and there is imbalance in the distribution of wealth in the society, there, the law is easily seen as instrument of oppression and a protection of the status quo. The above issues and some other interesting topics like the role or the part played by some agencies like the police, the Bar and the prison in the prosecution of cases will be considered in this essay and provide an avenue for the assessment of their performance in the administration of justice. The independence of the judiciary is not left untouched as it is a necessary adjunct to the proper administration of justice. The essay finally attempts to offer some useful suggestions and recommendations to arrest the ills plaguing our society today, as some stemmed from both internal and global structural ‘injustices’. However the essay is not claiming to be exhaustive.


Chapter One


Introduction

1.1 Background Of The Study

The judiciary is an arm of government that vested with the power to interpret laws made by the Legislature. Judiciary is a system of courts that interprets and implements laws in a state. They are in charge of providing a system that settles arguments. While in some countries under separation of powers, the judiciary does not have the power to make or enforce law as it is the duty of the legislature.

In some countries, the judiciary has the right to make law which is known as “Common Law”. The judiciary is frequently expected to ensure there is equal justice.

In most cases, it is not everything said by a judge in the course of his judgment that is important. Only a formal declaration on law in conjunction to the material fact before the judge is important. Therefore, ajudicial precedent is the principle of law on which a judicial decision centers on. Once a court is called upon to apply the decision in a recent case, the court is required to follow the pattern of the previous decision.

There are numerous challenges facing the judiciary. They are challenges of advocacy. An advocate is the most misunderstood professional. In some jurisdictions uniqueness is seen between a barrister and solicitor in the sense that it is only the barrister that can physically present itself before a court to debate on a case, while the solicitor on the other hand will take the brief from the client. In Nigeria, immediately one of them iscapable or seen to be competent to practice law, he is automatically a barrister and solicitor of the supreme courts of Nigeria and therefore qualifies to debate on any case in any of the courts of the country. Being that some people perceive an advocate in the positive light of assisting a client in claiming his or her rights by his powers of insistence and eloquence and thus view legal practice as a superb profession to save executive lawlessness, others perceive these qualities of an advocate to be a way to cut throats.

Another challenge facing the judiciary is the challenge of corruption. Corruption and perceptions of corruption in the judiciary underestimates the courts’ power of inspiring belief as fighters of corruption. More especially, it gradually destroys trust in the courts’ impartiality, harming all the major judicial functions, which includes as dispute resolution, law enforcement, protection of lands and property rights and contract enforcement. In addition, it harms the wider accountability duty that the judiciary is committed with in democratic systems – giving complete support to citizens’ rights, securing the integrity of the political rules of the game, and sanctioning representatives of other branches when they act in contradiction of the law.

Another challenge of the judiciary is that of legal practice. The most significant rule to be noted and the rule to be respected to be changed is that our courts of law should operate or function “in public”. We must not fail to realize that we may well rule ourselves out of the capacity to adapt to technological developments if we understand the necessity or demand for our courts to function “in public” as meaning only that they must operate in a place and at times open to “the public.” This is because we want to avoid “secluded justice”. If improvement in the electronic media make it possible to conduct any proceedings in a cause ormatter through the inter-Net more productively, our rules of practice and procedure ought not to stand in the way of conducting those proceedings in that way.


1.2 Statement Of The General Problem

Though the Nigerian judiciary has recorded amazing improvement in recent times; the poor performance and the corruption of the judicial system in Nigeria has had a devastating effect as it is no longer seen as the hope of the common man. These poor or averages performance may have been caused by some challenges and problems which has regrettably affected the development of our nascent democracy.

Administration of justice has from time immemorial been the exclusive preserve of courts of law. The establishment of tribunals with judicial powers parallel to those of courts of law is sometimes, due to efficacy of tribunals in carrying out an expedient trial devoid of technicalities that may prevent the access of justice. The administration of justice in our Nigerian Courts, at times is prevented by some technicalities; for instance, every conceivable defence in Court is leveled on jurisdiction. The implication of this is that, the defence of jurisdiction will be trashed first before the merits are considered; except in the cases of proceedings brought by originating summons whereby the Court takes the jurisdictional objection with the merit. In all other forms of proceedings, 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.

It is a fact well known that the issue afflicting the judiciary is the problem of undue delay in determining cases. In Nigeria, like some other developing countries, the legal processes are usually very slow and complex. In the course of the trial process when it eventually starts, it is not unusual in Nigeria to find a matter (civil or criminal) lingering for up to fifteen years, leaving concerned parties frustrated. In Ariori v. Elemo for instance it took about 23 years before final determination of the case at the Supreme Court. Union Bank Nigeria Plc v. Ayodare and Sons (Nig.) Limited was instituted at the State High Court in 1989 but was not finally disposed off by the Supreme Court until 2007 – a period of 18 years. The trial court gave judgment in Adisa v. Oyinwola in 1985 while the appeal was not determined by the Supreme Court until year 2000 – the appeal lasted for 15 years from the Court of Appeal to the Supreme Court. In addition, in Abayomi Babatunde v. Pan Atlantic Shipping And Transport Agencies Ltd & ors, a matter that began at the High Court in Lagos on 18th April, 1988, was finally settled at the Supreme Court on the 20th day of April 2007.

The very negative effect of this type of situation is appreciated more when one realizes that it is now a fact that foreign investors are attracted to legal systems that are effective in dispensing justice speedily. Therefore, the effectiveness and speed of a judicial system also determine the economic performance of the country. Without an effective justice administrative system, development in all its ramifications, including meaningful legal protection of human rights will remain a wish. An effective justice delivery system is a non-negotiable necessity. It is a condition precedent not just for affluent and economically advanced societies and economies, but also of any developing society and economy like Nigeria.


1.3 Objectives Of The Study

The major aim of the study is to examine the challenges, prospects and achievements of the Nigerian judiciary. Other specific objectives of the study include;

  1. To identify that a very great proportion of what goes on in the Nigerian law courts is the administration of justice between one citizen and another and between a citizen and the state and to these ends, to continue to maintain a delicate balance between the competing interests so that the end of justice can be properly served.
  2. To identify the power of the judge to punish for contempt is not only for the protection of the court of justice but also for preservation of justice and administration.
  3. To observe that the judge should not use his contempt powers to suppress methods of advocacy and should therefore exercise great restraints in punishing lawyers for contempt of court. After all, judges and lawyers are partners in the administration of justice.
  4. To observe at every available opportunity that justice delayed is justice denied.
  5. To determine always that a really independent judiciary depends on the intellectual calibre and the qualities of character of the bar from which the judges are drawn or appointed.
  6. To identify that all the citizens of Nigeria –whether they are young or old , rich or poor, literate or illiterate, high or low, muslim or Christian, pagan or agnostic, are all equal before the law.

1.4 Focus Of The Study

This project is set to examine the problems in the administration of justice in Nigeria at large. It focuses on the problems and prospects of our judicial system. An overview is also given on how jurist and judges and foreign jurist have helped to influence or resolve the issue or problems in Nigeria.


1.5 Scope Of The Study

The study is on the achievement, challenges and prospects of the Nigerian judicial system a case study of the Lagos state ministry of justice.This project covers a range of subject peculiar to the administration of justice in Nigeria. It covers the historical evolution of judicial system before the colonial intervention. It also covers the procedural problems in the administration of justice, Institutional problems in the administration of justice, Independence of the judiciary in all the courts in Nigeria generally. These are the aspects to be covered in this project.


1.6 Methodology

The research method employed for writing this project covers useful materials from both primary and secondary sources of law. The primary sources to be used are Acts of legislation, constitution of the federal Republic Of Nigeria 1999, criminal procedure code, penal code, criminal code, other primary sources are judicially decided cases and those cases from the Ombudsman as seen in some foreign countries. Secondary sources of law there are to be used include text books both from Nigerian legal system and administrative law, as well as published works on administration of justice. Other secondary sources are well researched from the internet, journals periodicals and newspapers all of which are expected to add value to the quality of the work.


1.7 Literature Review

Quite a number of authors both in the legal profession and public service have written extensively on the issue of justice, problems and prospects .some remarkable articles and publications of some of these authors will be reviewed below. The Black’s Law Dictionary (7th Edition) p44. Defines the word “Administration”. “Management or performance of the executive duties of a government, institution, or business. In public law, the practical management and direction of the executive department and its agencies. A judicial action in which a court undertakes the management and distribution of property.

OPUTA J.S.C in Godwin Josiah V The state (1985) 1 N.W.L.R. 125 at p141.said justice is not a one way traffic. It is not justice for the appellant only. Justice is not even, only a two-way traffic. It is justice for the appellant accused of a heinous crime of murder; it is justice for the victim, the murdered man, i.e the deceased whose blood is crying for vengeance; and finally it is justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of … That justice which seeks only to protect the appellant will not be even-handed justice… But justice sacrificed at the shrine of guilt.

The researcher had identified the concept of Legal Pluralism as a major challenge affecting the effectiveness of the justice administrative system in Nigeria. This exists because of the introduction of British laws into Nigeria to co-exist with the indigenous systems of customary and Islamic Laws, which has produced a tripartite system of law.

Aguda, in his book titled “The Challenge for Nigerian Law and the Nigerian Lawyer in the Twenty-First Century”, in proffering solution to this identified challenge, called for the teaching of Customary Law and Islamic Law in all our universities as part of subjects offered for basic degree in law (i.e. LL.B). The researcher disagrees with this position. There are several customary law practices of various communities, so how many of these should a lawyer or law student grasp? Even the Sharia or Islamic Law is administered in some jurisdictions as a variant of customary law, and in some other jurisdictions, as a distinct and separate system, while at the same time, almost completely ignored in other jurisdictions or ethnic groups. The researcher is of the opinion that a better approach is exploring the possibility of integrating the tripartite system of law and unifying the diverse systems of court. This by the way is long overdue.

The researcher had amongst other things in the research, highlighted on innovations and the changes brought by the Evidence Act 2011. In their article titled “The Evidence Act, 2011: Closing the window for the application of common law rules of evidence”, as published in the Journal of Contemporary Law, Arishe & Oriakogba had posited that based on section 3 of the Evidence Act 2011, “the window for the application of common law rules of evidence in Nigerian courts has been closed and that our law of evidence is now strictly statutory.” Their position is because Section 5(a) of the repealed Evidence Act provided that, “Nothing in this Act shall prejudice the admissibility of any evidence which would apart from the provisions of this Act be admissible.” According to them, Section 3 on the other hand of the Evidence Act 2011 provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.”

The researcher disagrees with the position of the said authors. In the researcher‟s opinion, there is indeed the need to make explicit provision as to the power of the court to resort to common law rules of evidence in determining the admissibility of a piece of evidence that is not specifically dealt with in the Act. However, such silence in the said Act cannot be bases for the position that “the window for the application of common law rules of evidence in Nigerian courts has been closed”. It is indeed therefore very doubtful if the law maker intended to completely exclude the application of the common law rules of evidence on matters of admissibility of evidence especially when it does not contradict the Act, or where the Act is silent. In fact, in view of this silence, the decision of the apex court in Queen v. Itule and Rex v. Onitiri remains valid. The position of the court in these two cases is to the effect that Nigerian court could rely on such common law rules to admit a piece of evidence where the Evidence Act was silent on a particular subject-matter provided that there was nothing in the Act that explicitly rendered such evidence inadmissible.


Chapter Five


Summary And Conclusion

5.1 Summary

The researcher has endeavoured to show that the reforms in the area of justice administration by way of the discussed legislations (i.e. the Administration of Criminal Justice Act 2015, and the Evidence Act 2011), have all helped in no small measure in advancing the efficiency of justice administration in Nigeria. In their own unique way, these reforms are trying to keep up with latest trends and have tried to block the weaknesses before now in our system that lead to unnecessary delays and at worst, permit the manipulation of the system by some litigants and their counsel.

However, notwithstanding the innovations made by the discussed reforms, or indeed any other existing or proposed reforms in the future, certain fundamental issues still go a long way to affect the efficiency of justice administration in the country. The challenge posed by Legal Pluralism as discussed by the researcher is a key issue that needs to be resolved quickly for a more robust justice administration in Nigeria. This is because the idea of subjecting individual citizens to different laws all within a single state is a mark of legal under-development. It is absurd that different courts still exist to administer different laws. Furthermore, the researcher believes that this is obviously now the appropriate time, in the reform process to begin to design and develop information technology policies for justice administration and effectively implement these policies, to the extent possible. The aim should be to provide a far-reaching technological solution tailor-made for the Nigerian judiciary. Information and Communication Technology (I.C.T) is an area to explore which has great prospects in Nigeria‟s justice administration.

Lord Woolf in his Access to Justice Report that formed the basis for the substantial alteration of the Civil Procedure Rules in the United Kingdom, identified a number of principles which the system should meet in order to ensure access to justice, one of which is the ability to „deal with cases with reasonable speed‟. Notwithstanding reforms carried out to ensure efficient justice delivery or administration, more still needs to be done. The research has shown how, with the ideas presented, a more robust, and pro-active justice administrative system in Nigeria that is more user- friendly can be achieved, where people can find a system that can dispense justice speedily. Justice delayed is justice denied.

„Slow and steady‟ no longer wins the race. „Fast and steady‟ does.


5.2 Findings

  1. As it relates to the Evidence Act 2011, there is no doubt that one of the most notable innovations of the Act as it relates to efficient justice administration, is the introduction of provisions relating to electronic or computer evidence. There is also the definition of words like „Document‟ and „Computer‟ that covers quite a large spectrum of electronic and computer related technologies. In view of advancement in information and communication technology, this can be said to be a laudable development. Before now, admissibility of this class of evidence had been controversial due to the absence of specific provisions thereto in the repealed Evidence Act or even of a simple definition of the word „computer‟. Such an innovation although long overdue, increases the confidence and faith of the business community, especially international business community, in the ability of the Nigerian legal system to properly deal with legal issues arising from various forms of their commercial transactions which are undeniably mostly conducted by, or with the aid of such computerised or electronic technology platforms. As virtually all of their transactions are electronically based, professionals, who handle maritime matters for example, or aviation and even oil and gas as well as international financial transactions, for example, can always say how relieved, they and their clients are by virtue of these innovative provisions in the said Act. With these extensive provisions, it is obviously clear that unlike under the previous Act, the controversy about the admissibility of computer-generated evidence will largely reduce.
  2. It was observed that a comparison of section 84 of the Evidence Act 2011 reveals that it is more or less a replication of section 65B of the Indian Evidence Act, 1872 as amended, and substantially similar also to section 69 of the Police and Criminal Evidence Act, 1984 of England and Wales . This is quite commendable as it shows the existence of wide consultations and comparison in fashioning out this new law. This very section by the way is one notable innovative provision of the Evidence Act 2011 dealing with the admissibility of computer generated evidence.
  3. It was also observed that concerning the Administration of Criminal Justice Act 2015, the infamous holding charge syndrome under the guise of “Applications for Remand” in section 293 of the same Act is sadly still in existence and is not innovative nor worthy of any positive comment. In furtherance to this, it appears section 296 is nothing but an unfortunate step back for civil rights and liberties. This is because Section 296 provides that “Where an order of remand of the suspect is made pursuant to section 293 of this Act, the order shall be for a period not exceeding 14 days in the first instance, and the case shall be returnable within the same period.” Meanwhile, it should be noted that section 293(2) and (5) allow for a further extension of the period of remand without charge of 28 days. The implication here is that a Nigerian citizen, right here in Nigeria can be legitimately arrested and held for up to 42 days on ordinary suspicions. In the researcher‟s opinion, such provisions calls for a review since it in a sense, defeat the cardinal principle of presumption of innocence of the accused (not to mention a suspect) until proven guilty. Regardless of what argument may be said to justify such a provision, a better way to handle the situation should have been perhaps putting pressure on law enforcement agencies such as the police, to as a matter of legal compulsion, ensure speedy investigations and similar arrangement for state counsels to be prompt as regards their legal advice in criminal matters.
  4. It was observed that the countries judicial system as a whole is yet to take full advantage of I.C.T in enhancing its operations. For example, there is the absence of an I.C.T judiciary integrated system that will coordinate all I.C.T related activities of the judiciary, from filling of cases to payments of fees and all other forms of court records. With a well-developed database programme for example, tracking of records, events and cases with a view to availing the decision makers like judges information in a timely manner is certain. Greatly enhanced now is our capacity to capture, study and manipulate data producing reports and other records that one might be interested in.
  5. It was also observed that the tripartite system of law and of court existing in Nigeria has created uncertainty or lack of uniformity, at times, in the administration of justice in the country. Different High court rules of the various State High Courts in Nigeria, as well as different rules and laws of all other lower courts (such as magistrates, Sharia, Customary, Area courts etc) of the various states, all create a web of a complex judicial structure. This extends even in the teaching of the law, especially customary and Islamic family and Penal Laws and Jurisprudence. There is a need to create a less complex judicial system and even of hierarchy of courts.

5.3 Recommendations

  1. Notwithstanding the notable innovations of the Evidence Act 2011 as it relates to the introduction of provisions relating to electronic or computer evidence, it is hereby recommended to judicial officers like judges and all those involved in one form of justice administration or the other apply caution. This is because coming along with the advancement in computer technology is some dangerous negative tendencies, requiring that the Nigerian courts or judiciary be very cautious in admitting electronic evidence. Impersonation and identity theft, hacking of e-mail addresses, and all other manner of manipulations are now possible with the computer use. Not to mention that even passwords can be broken, online document can be altered, and photographs can be manipulated and images super-imposed with such computer use. It is possible to send text messages using someone else‟s phone number. The point here is that notwithstanding the laudable innovations of the law, it is strongly recommended that there is still the need for caution and vigilance by the Nigerian courts in this area of evidence. Imagine a situation where for example Mr. A is been charged for a criminal offence, and messages allegedly sent by him to a co-conspirator, or something he allegedly said in his Face book page or twitter account concerning the crime is to be tendered as evidence against him. In a world where it is possible to hack the face book account of even Mark Zuckerberg (the founder of face book) himself, to simply accept and convict Mr. A on such evidence stated could be a mistake.
  2. As it relates to the similarity of section 84 of the Evidence Act 2011 and section 65B of the Indian Evidence Act, 1872 as amended, as well as section 69 of the Police and Criminal Evidence Act, 1984 of England and Wales, it is recommended that the Nigerian courts and even lawyers take the liberty of looking into such persuasive judicial authorities of such jurisdictions. The reason for this is quite simple. Given the novelty of these provisions in our law, and with undoubtedly many Judicial decisions and precedents from these jurisdictions and even more besides them on various aspects of electronic evidence, it is a logical decision to make. It is also further recommended that bodies like the National Judicial Institute, Council of Legal Education and even the Nigerian Bar Association should consider it an urgent need now for Judges and even lawyers to be trained not just in basic computer literacy anymore, but also in serious computer intelligence, cyber-crime detection, imaging and forensic evidence. This will be one way of ensuring that justice is not sacrificed on the altar of electronic evidence.
  3. It is recommended that the National Assembly, in the interest of the civil liberties of citizens consider amending sections 293 and 296 of the Administration of Criminal Justice Act 2015. In a society like ours where rights and liberties are dispensable easily and quickly or sacrificed against the wanton execution of arbitrary power, such provisions are obviously counter-productive.
  4. In compliance with the undeniable truth as to the importance of I.C.T in justice administration, it is recommended that the National Judicial Institute (N.J.I) and all Judicial Service Commissions ensure that all judicial officers and judiciary staff are trained on the use and application of I.C.T systems necessary for the discharge of their functions. The said Judicial Service Commission should consider having I.C.T experts employed within the judicial administration while the office of the Chief Justice and all relevant Judiciary administrators should consider the development of a National Judicial Computerised Case Administration System an urgent necessity. This system should serve as base operation for all I.C.T administrative process or activities of the Nigerian judiciary.
  5. The researcher strongly recommends that the Nigerian Law Reform Commission and the National Assembly, in conjunction with other relevant agencies or organizations should as a matter of urgency, consider the development of a Nigerian Common Law. This should entail a system where all citizens are subjected to the same legal system and not as we currently have, different courts administering different legal systems. Also, in the spirit of drastic reforms all aimed at speedy dispensation of justice, the same Law Reform Commission should also promote, advocate and liaise with necessary institutions such as the National Assembly for the complete abolition of all Customary, Sharia, Area and even Magistrates‟ Courts all over Nigeria. Court composition should consist simply of the High Court, Court of Appeal and Supreme Court. This will ensure quick and easy determination of disputes from the court of first instance to final appeal. Even if some may argue that these inferior courts to be abolished dispense 80% of cases that come before the judiciary, there is nothing wrong in increasing for example, the number of high courts so more cases can be tried at that level. The idea here is to reduce the stress or time it takes or may take before a matter is finally settled. As a matter of fact, in considering a more daring and drastic approach, there is nothing wrong in even having just two levels of court. Court of first instance and court of second instance or final appeal. What this may entail for instance is that trial at the courts of first instance for example may consist of a panel of say five or seven judges, while at the final appeal stage (second instance), trial may consist of a panel of say twelve judges or more.

In the researcher’s opinion, it is time to think outside the box and come up with solutions that really work. There is nothing wrong in having dispute finally settled at the apex court within six months of the commencement of the case at the lower court.

Finally, while it is true that the discussed reforms are laudable, as it has synchronised our law with modern realities, it is not yet victory for the administration of justice in Nigeria.

The problem we have had in the past is that the laws do not keep pace with the realities of everyday life. With the growth in science and technology and as the society now keeps changing at dazzling pace, the National Assembly must constantly review and update the laws or ells, we may soon find ourselves lagging seriously behind again not only in all aspects of our laws, but even in the discussed reforms of this research.


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